The Honourable Mr Justice Owen :
- The defendant is a commercial bank operating in the City of London. The claimant, who was born on 12 January 1970, was formerly employed by the defendant as a Company Secretary Assistant in its secretariat department. Her employment commenced on 6 Oct 1997. On 7 November 2000 she was admitted to hospital where she was diagnosed as suffering from a major depressive disorder. On the 13th of March 2001 she returned to work, initially on a part-time basis. In October 2001 she suffered a relapse of her psychiatric illness, and at the end of the month stopped work. She did not return to work; and her employment was terminated by notice dated 8 August 2001 to take effect on 12 September 2003. Seven days later, on 19 September 2003, she issued proceedings claiming damages for personal injury, and consequential loss and damage, alleging that her psychiatric injury was the result of harassment and bullying by her fellow employees for whom the defendant is vicariously liable, and of a failure of management on the part of the defendant. The claim gives rise to complex factual and medical issues; but before addressing such issues, it is necessary to consider the legal framework within which those issues fall to be resolved.
- THE LEGAL FRAMEWORK
In her pleaded case the claimant sought to rely on a number of causes of action. First and foremost she alleges that the defendant was in breach of its duty of care to her. It was accepted in the re-amended defence that the defendant owed her a duty to exercise reasonable care for her safety, but it will be necessary to consider the cause of action in negligence in greater detail. Secondly the claimant asserts that the defendant was in breach of her contract of employment. Again it was accepted in the re-amended defence that the defendant was under a contractual duty to exercise reasonable care for her safety. But as was tacitly acknowledged by the parties in their closing submissions, this is not a case in which the claimant could succeed in breach of contract if she failed in her action in negligence; and I do not therefore propose to give separate consideration to the cause of action in contract. The claimant no longer seeks to rely upon the third cause of action pleaded in the statement of case, the allegation that the conduct of which she complains amounted to a breach of the statutory duties owed to her by the defendant as her employer. But she does rely upon the fourth pleaded cause of action, the claim under the Protection from Harassment Act 1997 to which I shall return.
- As to the claim in negligence, there is no dispute that the defendant owed its employees a duty to take reasonable steps to protect them from foreseeable harm to their physical or mental health. But it is instructive in this context to consider the judgment of the Court of Appeal in Sutherland v Hatton (2001) EWCA Civ 76. The judgment of the court was given by Hale LJ. Having considered the relevant legal principles, she set out a number of practical propositions applicable to cases in which there is a claim for psychiatric injury caused by work related stress. In this case it was clear from the evidence that the workload in the defendant's Secretariat Department increased demonstrably during the period with which I am concerned. But it is not the claimant's case that her breakdowns were caused by overwork, or that the defendant was negligent and/or in breach of contract in that regard. As the claimant said in the course of cross-examination:
"Q. Is it right that you never complained about your workload during that period? (late 1997-April 2000)
A. What I would like to say is that throughout my career at Deutsche Bank no I never complained about my workload. I complained about the heavy workload as did everybody.
I feel that this is not the main thrust of my case. I truly believe that the main thrust of this case is that I was bullied and harassed. There were times when I was overworked."
- Mr Glancy QC made the claimant's position clear in his closing submissions:
"But this is not a case where the claimant says her breakdown was caused by excessive hours …I simply invite your Lordship to say that there are many regulations to protect employees, and particularly the working time regulations, and if your Lordship accepts she was working, very long hours, then she was affected certainly by that. But that was essentially related herself, to the bullying and to the harassment. It was not in itself a cause of action."
- But the practical propositions advanced by Hale LJ in Sutherland v Hatton nevertheless provide some guidance as to the proper approach to the issues to which this case gives rise, in particular the importance of what she described as the "threshold question", namely whether psychiatric injury or illness was reasonably foreseeable. As she said at paragraph 43(3):
"(3) Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large (para 23). An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability". (para 29)
- Secondly at 43 (14), and (15) she addressed the issue of causation, and at (16) the issue of damages:
"(14) The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm.
(15) Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment (paras 36 and 39).
(16) The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress related disorder in any event (para 42)."
- The need for foreseeability of injury in this context was emphasised by the Court of Appeal in Garrett v London Borough of Camden [2001] EWCA Civ 395, a case in which the claimant claimed that he had been harassed, intimidated and systematically undermined.
"Many, alas, suffer breakdowns and depressive illnesses and a significant proportion could doubtless ascribe some at least of their problems to the strains and stresses of their work situation: be it simple overworking, the tensions of difficult relationships, career prospect worries, fears or feelings of discrimination or harassment, to take just some examples. Unless, however, there was a real risk of breakdown which the claimant's employer's ought reasonably to have foreseen and which they ought properly to have averted, there can be no liability." Per Simon Brown LJ at para 63.
- There are two limbs to the claimant's claim in negligence. First she contends that her psychiatric injury, and consequential loss and damage, were the result of bullying and harassment on the part of a number of the defendant's employees for whom the defendant is vicariously liable. Secondly she contends that there was a negligent failure on the part of the management and of the defendant's Human Resources (HR) department, to take any or any adequate steps to protect her from such conduct.
- As to the first, the questions to be determined when considering whether alleged bullying and harassment give rise to a potential liability in negligence were addressed by Gray J. in Barlow v Borough of Broxbourne [2003] EWHC 50 QB His analysis, with which I respectfully agree, and which is directly applicable to this case, is to be found in paragraph 16 of his judgment:
"(i) whether the claimant has established that the conduct complained of in the Particulars of Claim took place and, if so, whether it amounted to bullying or harassment in the ordinary connotation of those terms. In addressing this question it is the cumulative effect of the conduct which has to be considered rather than the individual incidents relied on;"
(ii) did the person or persons involved in the victimisation or bullying know, or ought they reasonably to have known, that their conduct might cause the claimant harm;
(iii) could they, by the exercise of reasonable care, have taken steps which would have avoided that harm and
(iv) were their actions so connected with their employment as to render the defendant vicariously responsible for them.
I would simply add to (ii) that in this case the harm in question is psychiatric illness or injury.
- As to the second the questions to be determined are:
(i) did the claimant's managers and/or members of the HR department know or ought they reasonably to have known that the claimant was being subjected to the conduct complained of,
(ii) did they know or ought they reasonably to have known that that such conduct might cause the claimant psychiatric injury,
(iii) could they, by the exercise of reasonable care, have taken steps which would have avoided such injury.
- Protection from Harassment Act 1997
Section 1 of the Protection from Harassment Act 1997 provides that:
"(1) A person must not pursue a course of conduct –
(a) which amounts to harassment of another and
(b) which he knows or ought to know amounts to harassment of the other
…
(2) for the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other".
By section 3 a breach of section 1 may be the subject of a claim in civil proceedings, and on such a claim "… … damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment". Section 7 provides that:
"(2) References to harassing a person including alarming the person or causing the person distress.
(3) A "course of conduct" must involve –
(a) In the case of conduct in relation to a single person … … conduct on at least two occasions in relation to that person.
(b) … …
(4) "Conduct includes speech".
- The relevant sections of the Act were the subject of the decision of the Court of Appeal in Majrowski and Guy's & St. Thomas' NHS Trust [2005] QB 848. There were two limbs to the decision, both of direct relevance to this case. First the Court of Appeal held that vicarious liability was not confined to common law claims, and that an employer could be vicariously liable under section 3 of the Act for harassment by an employee in breach of section 1. That limb of the decision was the subject of appeal to the House of Lords [2006] UK HL 34 in which the opinions of the House were given on 12 July 2006. The decision of the Court of Appeal was upheld.
- The second limb of the decision of the Court of Appeal in Majrowski, which was not the subject of appeal to the House of Lords, was directed to the meaning of harassment within the Act. At paragraph 82 of the judgment May LJ cited the following passage from the judgment of Lord Phillips of Worth Matravers MR in Thomas v News Group Newspapers Ltd [2002] EMLR 78 at paragraph 30:
"The Act does not attempt to define the type of conduct which is capable of constituting harassment. 'Harassment' is, however, a word which has a meaning which is generally understood. It describes conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable."
May LJ then continued at paragraph 82 of his judgment:
"Thus, in my view, although section 7(2) provides that harassing a person includes causing the person distress, the fact that a person suffers distress is not by itself enough to show that the cause of the distress was harassment. The conduct has also to be calculated, in an objective sense, to cause distress and has to be oppressive and unreasonable. It has to be conduct which the perpetrator knows or ought to know amounts to harassment, and conduct which a reasonable person would think amounted to harassment. What amounts to harassment is, as Lord Phillips said, generally understood. Such general understanding would not lead to a conclusion that all forms of conduct, however reasonable, would amount to harassment simply because they cause distress."
- Thus to constitute harassment within the meaning of the Act there must have been conduct:
(a) occurring on at least two occasions
(b) targeted at the claimant
(c) calculated in an objective sense to cause distress and
(d) which is objectively judged to be oppressive and unreasonable.
- VICARIOUS LIABILITY
It is the claimant's case that the defendant is vicarious liable for the bullying and harassment to which she claims to have been subjected. In Bernard v Att. Gen. of Jamaica [2005] IRLR 398 para 18, Lord Steyn summarised the correct approach to the issue of vicarious liability in the following terms:
"The correct approach is to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort, and to ask whether in looking at the matter in the round, it is just and reasonable to hold the employer vicariously liable."
- The nature and extent of the connection required was also considered by the House of Lords in Lister v Helsey Hall [2001] UKHL 22, [2002] 1 AC 215, and in particular in the following passages from the speech of Lord Clyde:
"44…that the act was done during the hours of the employment does not necessarily mean that it was done within the scope of the employment…Acts of passion and resentment (as in Deatons Ppty Ltd v Flew (1949) 79 CLR 370), or of personal spite (as in Irving v Post Office [1987]) may fall outside the scope of the employment.
45. Thirdly, while the employment enables the employee to be present at a particular time at a particular place, the opportunity of being present at particular premises whereby the employee has been able to perform the act in question does not mean that the act is necessarily within the scope of the employment. In order to establish vicarious liability there must be some greater connection between the tortuous act of the employee and the circumstances of his employment than the mere opportunity to commit the act which has been provided by the access to the premises which the employment has afforded: Heasmans v Clarity Cleaning Co [1987] IRLR 949"
- THE FACTUAL BACKGROUND
The claimant was born on 12 January 1970, and was placed in a children's home. At the age of two she was adopted, and raised by her adoptive parents in a village in Lincolnshire. From an early age she was subjected to sexual abuse by her adoptive father. Furthermore she says, and I accept, that she was also a victim of physical abuse by her adoptive mother, abuse that included slapping, punching, cutting off her hair and locking her out of the house. There were marital difficulties between her adoptive parents. Her mother left home when the claimant was 13; and she continued to live with her father. After a number of attempts at reconciliation, her mother returned when the claimant was 16. But at that point, having left school, the claimant left home, and moved into a bed-sit arranged by social services. Although she had showed considerable athletic ability at the school, her academic career was undistinguished, leaving in June 1986 with the equivalent of 3 O-levels. Having left school she enrolled at the Grantham College of Further Education where she obtained three more O-levels and an A level. She then went on to complete a two year business BTEC diploma. She financed herself through college by social security benefits and part-time work. After college she obtained a place at Anglia Polytechnic University. After two years she obtained a Diploma in Higher Education incorporating the professional examinations for the Institute of Company Secretaries and Administrators (ICSA). She was heavily involved in sporting activities at University in particular playing hockey for the University ladies team and its mixed team.
- In the final year of her University course her studies were disrupted when her adoptive father got in touch with her again. It appears that at that point she informed her adoptive mother of the abuse by her adoptive father. When she did so, her mother accused her of assault and said that she would be reporting her to the police. That provoked the claimant into reporting the abuse to the police herself. It appears that her father was interviewed and admitted abusing her. But she did not want to press charges, and her father was simply cautioned. She subsequently felt that her parents had "swept the sexual abuse under the carpet", and in consequence she issued civil proceedings against her father which resulted in a judgement in her favour in 1995. As a result of the disruption to her studies in her last year at university, she did not complete her final year exams.
- After leaving university in June 1992 she was employed by Britvic as a distribution and resource planner, leaving in April 1993 when the department in which she worked was relocated to Birmingham. But shortly before leaving Britvic she was approached by Cable and Wireless for whom she had worked during her summer vacations whilst at university, and was offered employment working as a project assistant in their Transatlantic Marine Cable Installation Department. In October 1993 she returned to Anglia Polytechnic University to study for a BA (Hons) degree in business studies, which she completed in a single academic year. In September 1994 she moved to Cheshire to join her then partner; and in November 1995, after a series of temporary jobs, she accepted a position as Company Secretary Designate at Cogran Reclamation Limited. In June 1996 she returned to London to take up a job with the Eurotunnel Group Secretariat. She was engaged on a six month contract which was extended for a further nine months. The extended period was due to come to an end on 30 Sep 1997, and Eurotunnel offered her a permanent position as an assistant Company Secretary working in Folkestone. But she declined the offer as she wanted to continue to work in London. It was at that point that she was offered and accepted employment by the defendant, initially for a probationary period.
- The offer of employment made by letter dated 4 September 1997 was preceded by three interviews. At the first the claimant was interviewed by two members of the Secretariat Department, Stephen Page and Giles Clark. She was then called to a second interview with the head of the Secretariat Department, Richard Elliston. That was followed up by an interview by representatives of the defendant's HR department. The claimant's account of that interview, which I accept, is that she was asked why she had not completed all of her ICSA examinations whilst at university. She says that she was reluctant to divulge that she had been abused as a child, and instead explained that she had been the claimant in a personal family matter, and had been successful in her claim. She said that she had not completed her examinations because the case had made her ill. When pressed for further details, she said that all that she was prepared to add was that the matter had been completely unrelated to her work. Following that interview she was contacted again by the recruitment agency and was told that the defendant was now seeking a verbal reference from her boss at the Eurotunnel, and that that was deemed necessary because she had withheld information during the interview. It is her understanding that such a reference was taken up. Furthermore, and prior to her starting work, the defendant also spoke to her course tutor at university, who wrote to the defendant on 30 September 1997 saying:
"As you are aware Miss Green had some unpleasant times due to problems in her private life which I'm sure had an effect on her overall performance but she worked hard and was always a polite and attentive student."
- The offer of employment of 4 September 1997 was "… subject to suitable references, and a satisfactory medical report…" and the claimant underwent a pre-employment medical screening. The questionnaire that she completed at the screening has been disclosed. The 'yes' box has been ticked for question 4 which is in the following terms:
"Mental illness and/or stress related problems?
Nervous breakdown? Mental Fatigue? Anxiety?
Depression? Panic attacks? Significant sleep disturbance?
Stress related problems? Any other conditions?
- The matching entry in the column headed "If Yes, give details and dates" is "DEPRESSION FOLLOWING A COURT CASE – 1995". Question 5g asked for details and dates of any medication prescribed over the past two years. The matching entry is "DOTHIEPIN HYDROCHLORIDE 1995". The claimant says that after completion of the questionnaire she was asked questions about the information that she had disclosed.
- On 26 September 1997 the defendant wrote to the claimant stating that it had now received a satisfactory medical report and confirming her appointment as Company Secretary Assistant with effect from 6 Oct 1997. Her starting salary was £26000; and she was also eligible to participate in the defendant's Profit Sharing Bonus Scheme.
- When the claimant began work with the defendant, its Secretariat Department was relatively small. It is convenient at this stage to identify those members who feature in this case, and briefly to summarise their roles. The head of the department was Richard Elliston, who was also Secretary to the defendant's Global Investment Bank board. Shortly after starting work for the defendant, the claimant began a relationship with Mr Elliston after he had taken her out to lunch and later to the opera. Mr Elliston was at the time separated from his wife who lived in Argentina. It was the claimant's evidence that they were never openly affectionate to each other in the office, but that outside work they made no attempt to hide their relationship. The relationship subsisted until November 2002 when the claimant brought it to an end.
- The work of the Secretariat Department was broadly divided into two business streams, non-transactional work and transactional work. The non-transactional work related to corporate governance, and board and committee meetings. The transactional work involved inter-group restructuring, internal and external investments, and mergers and acquisitions. Giles Clark was the Assistant Group Secretary who managed the non-transactional work. He reported directly to Mr Elliston and was the claimant's line manager until her first breakdown in November 2000. From 7 December 1997 to 1 April 2000 Diarmuid Cummins was what he described as joint deputy head of the Secretariat department. He was responsible for transactional work and also reported directly to Mr Elliston. On 1 April 2000, Mr Cummins became Chief Operating Officer of the defendant's European private equity businesses and activities, a post that he held until 31 March 2003.
- In due course the claimant was one of three Company Secretary Assistants. The other two were Stuart Preston, who started work for the defendant approximately one month after the claimant, and Anthony Whitter, who had previously worked in the company secretariat department at Morgan Grenfell until its acquisition by the defendant in December 1999. Mr Preston initially reported to Mr Elliston; but following the defendant's merger with Bankers Trust in June 1999, there was a re-organisation of the department, as a result of which he reported to Mr Cummins. In January 2000 Adam Rutherford joined the bank as a company secretary at the same level as the claimant.
- There were also a number of personal assistants/secretaries employed in the department at various times, in particular Collette Wisener-Keating who worked for Mr Clark and Mr Whitter, Heather Cook, who worked for Stephen Page and subsequently for Mr Clark, Clare McCall, who was employed on a temporary basis for two separate periods during which she worked for the claimant and Mr Preston, and then on a permanent basis as a Corporate Compliance Officer reporting to Mr Clark, and Jenny Dixon who worked for Richard Elliston.
- When the claimant began work for the defendant, the Company Secretariat Department shared a relatively confined office space with the Insurance Department. During the initial period with which I am concerned the Insurance Department was managed by Valerie Alexander, who reported to Mr Elliston. She had a personal assistant, Fiona Gregg (Taylor). There was also a Telephone Directory Administrator, Daniella Dolbear, who reported to Ms Alexander. Mr Elliston's secretary, Jenny Dixon, had a desk in close proximity to Ms Alexander and her team.
- On 17 March 1998 there was an appraisal of the claimant's performance. The record of the appraisal sets out a succinct summary of her main tasks and areas of activity:
"1. Day-to-day responsibility for coordinating the production of UK subsidiaries' statutory accounts and arranging Board approval of the accounts; attending meetings where necessary.
2. Day-to-day responsibility for maintenance of statutory registers and notifications of statutory charges to Companies House etc., in addition, dealing with internal requests for company information.
3. Administration of certain overseas companies of a secretariat nature.
4. Assisting Stuart Preston with Data Protection work and compliance.
5. Assistance with ad-hoc projects eg: loan register."
- The appraisal form identifies a number of 'Behavioural Characteristics' for comment by the appraiser. In all save one, the claimant was assessed as either fully meeting or exceeding job requirements. The exception was 'Problem Analysis and Planning', for which the assessment was on the borderline between 'An improvement is performance is needed and likely' and 'Fully meets job requirement'. Of particular relevance to the issues that I have to address, is the entry under 'Relationship with Colleagues' :
"Team player, social, has coped well despite certain internal difficulties."
The claimant's own comments on the appraisal included the following sentence:
"I am sure my confidence will return once departmental issues have been resolved, and will make my job even more enjoyable."
Both entries relate to the claimant's treatment at the hands of four women who worked in close proximity to her, Ms Alexander and her team, and Mr Elliston's secretary, Jenny Dixon, a subject to which I shall return.
- On 23 March 1998 Mr Elliston sent a memorandum to the defendant's HR Department describing Mr Clark's appraisal of the claimant as "very satisfactory", and saying that "Her work responsibilities as well as her abilities justify a regrading to grade 6, the correct grade at this stage for that role". The claimant was duly regraded.
- The claimant's next appraisal was dated 30 Nov 1998. It was also highly satisfactory. The form of the appraisal record had changed; but under 'communication' and 'teamwork', she was assessed as 'often exceeding expectations', and she was described as "…a valuable member of the team and has shown good commitment and works hard." It is noteworthy that in the appraisal of her own appraiser, Mr Clark, there is the following entry under the heading "Leadership/Management" :
"Work allocation among Stuart and Helen not always optimal, leading to under work of one and overwork of the other.
Management of Stuart could have been closer and would have avoided some mishaps."
- In November 1998 the defendant announced a $10.1 billion takeover of the US investment bank, Bankers Trust. The merger was approved by the shareholders of Bankers Trust in April 1999, and was completed in early June 1999. It is common ground that the merger involved a very considerable increase in the work load of the Secretariat Department. On 30 December 1999 Mr Elliston responded to the increase by issuing a memorandum making a number of changes to the allocation of work within the department.
- By a letter dated February 1999 the claimant was promoted to grade five within the defendants' grading structure. The promotion, and the matching increase in salary to £32,000 per annum, took effect from 1 April 1999; and she received a discretionary cash incentive award of £10,000.
- On 9 March 2000 the claimant requested a meeting with Suzanne Warner, a member of the defendant's HR department, at which she drew attention to problems within the HR department. I shall consider the substance of the discussion and its consequences so far as the management of the department was concerned at a later stage. It appears that Ms Warner referred her to Dr Kelly & Associates, who provided GP services for the defendant's staff, with a view to stress counselling. She was seen by a Dr Buchman, who by letter dated 9 March 2000 referred her to Dr Anthony Fry, a consultant psychiatrist. The referral letter was in the following terms:
"Thank you for seeing this lady who was sent in to me by Human Resources of the bank she works for, for stress counselling. She was somewhat tearful during our short consultation and is essentially very unhappy with her work situation. She has been with the bank for 21/2 years and has had problems with colleagues and managers in several different ways. She told me that she was subject to bullying by four colleagues when she started 21/2 years ago. Three of the perpetrators have now moved or left, however, one is still present and still apparently causing problems for Helen. She has also had problems with her boss, who she describes as being "at war" with another parallel work team. Her work environment is making her thoroughly miserable. She is reluctant to make formal complaints or to be seen to be a troublemaker as she feels that this will block her progress in her career…"
- Dr Fry replied to Dr Buchman on 16 March saying:
"Thank you for referring this charming young woman, who, as you know, works as a corporate legal adviser in Deutsche Bank. It is clear that she is talented and enjoys her work. She does, however, echo exactly what you have said in your letter. She describes her office as competitive, she says there is a difficult atmosphere there and from the moment she wakes up in the morning she feels apprehensive about going to work. At the weekends she finds herself feeling tense and uncomfortable and she wants to try and deal with these feelings and sort them out."
He went on to say that "… she is now not only miserable but probably in the early stages of a depressive illness and I think it is probably appropriate to give her anti-depressants".
- The claimant was also referred to Kasia Syzmanska, a psychologist, for 10 sessions of Cognitive Behavioural Therapy, which was paid for by the defendant.
- In March 2000 the HR department arranged for the entire Secretariat department to attend a harassment awareness course, which was held at 23 March 2000. On 25/26 April 2000 the claimant attended an assertiveness training course which had also been arranged by the HR department.
- Following Mr Cummins's transfer from the Secretariat department on 1 April 2000, his duties with regard to the Legal Entity Committee were divided between the claimant, Mr Preston, and Mr Rutherford. Mr Preston was put in charge of Structured Transaction Group (STG) transactions, Mr Rutherford of Real Estate and Investment Banking, and the claimant eBusiness transactions and all other miscellaneous transactions including private equity.
- The claimant went on holiday at the end of October 2000. When she attempted to return to work, she found that she was simply unable to walk through the main door of the defendant's offices. An arrangement was made for her to see a doctor on the following day, and on 8 Nov 2000 she was admitted to the Florence Nightingale hospital. The hospital notes for the following day, 9 Nov 2000, record:
"Acute relapse anxiety/depression -- following return from holidays and prospect of returning to work (much harassment and psychological bullying there last 2-3 years)"
- Her condition was such that for the next couple of days she was placed on suicide watch. It was not until 23 Nov 2000 and that she could be persuaded to permit the hospital to inform her friends and relations that she was an impatient. She was discharged from inpatient care on 24 December on condition that she stayed with her cousin over the Christmas period; and on 27 December it was agreed that she would move into accommodation attached to the hospital, a 'halfway house'. She left the halfway house on 26 Jan 2001. On 12 March 2001 she returned to work, initially on a part-time basis. During her absence Andrew Bartlett had joined the Secretariat department, and upon her return he became her supervising manager. On the April 2001 her salary was increased to £45,000, and she became entitled to a discretionary cash incentive of £15,000.
- In about September 2001 the claimant was assigned to assist Mr Bartlett with a management buyout led by the Asset Management Division, and known as 'Project Baxter'. In October 2001 Mr Bartlett went on holiday, and in his absence the claimant and Mr Bartlett's secretary looked at his e-mail account in circumstances to which I shall return. In his sent folder they discovered an e-mail from Mr Bartlett to David Penfold, head of Legal Entity and Structuring and Analysis, a department within the Controlling function. It was dated 20 September 2001, and was in the following terms;
"Re: our discussion yesterday. I fully understand your views regarding Helen and I have plans in the medium term to resolve the position within the department. For the purposes of the meeting on Monday, I would like Helen still to attend -- I fully briefed her along the lines I discussed with you yesterday (ie we will take ownership of facilitating and co-ordinating the transfer agreements, local legal advice, board approvals for the project along with any other areas where we can add value) and I hope she makes a contribution along these lines. While I am away, Giles has agreed to closely supervise Helen's work until I return."
- The claimant was shocked by the e-mail, and interpreted it to mean that she was going to be removed from the bank. It is common ground between the medical experts that sight of the e-mail precipitated a further breakdown. She stopped work on 18 October 2001, and never returned.
- The defendant kept the claimant's job open until August 2003. On 21 March Angus MacGregor of the defendant's legal department wrote to solicitors then acting for the claimant saying;
"The bank is very keen to understand Helen's current medical condition with a view to organising a return to work or, failing that, filling your client's position with a permanent replacement going forward. You should know that a major reorganisation has recently taken place and your client's position has been kept open with a temporary employee continuing to cover the position.
- The letter requested sight of an up-to-date medical opinion from Professor Hirsch, the consultant psychiatrist who gave evidence on behalf of the claimant at trial. A report from Professor Hirsch was duly disclosed to the defendant; and on 8 August 2003 the defendant again wrote to the claimant saying that in the light of Professor Hirsch's view that she would be unable to return to a role with the bank, her employment would be terminated on 12 September 2003.
- THE MEDICAL ISSUES
Before addressing the factual issues to which the claim gives rise, it is convenient to consider the medical issues. The parties each adduced evidence from a consultant psychiatrist. Professor Hirsch was called on behalf of the claimant, Professor Fahy on behalf of the defendant. Not surprisingly there was a large measure of agreement between them. It was reduced to writing in a joint report dated 31 January 2006. They addressed four issues, the claimant's condition prior to her employment by the defendant, diagnosis of the psychiatric illnesses suffered during the course of her employment, the causation of such illnesses, and her prognosis so far as future employment is concerned.
- It is common ground that the claimant was vulnerable to psychiatric illness before taking up her employment by the defendant in October 1997. The experts' agreement as to the nature of that vulnerability is in the following terms:
"There is considerable evidence of psychiatric vulnerability in Mrs Green's case prior to her joining the Bank. Ms Green suffered a troubled childhood, including separation from her biological mother, sexual abuse by her adopted father and conflict and separation from her adopted mother. Although Ms Green has exhibited resilience and determination, she showed evidence of recurring psychiatric problems including bulimia, and episodes of depressive symptoms, prior to the alleged bullying at DB Group Services. Although she showed evidence of a vulnerable personality, we do not believe this amounted to a pre-existing personality disorder. The depressive episodes recorded in her general practitioner's notes arose in relation to problems with her partner, physical health, and stress at work. We note that following treatment, she recovered from bulimia and her depressive episodes responded to treatment.
We agree that despite her achievement in overcoming several severe life difficulties (abuse, abandonment, having to make her way from age 16 and putting herself through education) the clinical records suggest that Ms Green had a continuing vulnerability and that this would have increased her susceptibility to life's stresses. While we agreed that she was likely to experience periods of depression at times of stress, we agreed that it is not possible, within the constraints of the information available, to state that Ms Green was destined to have a severe or protracted psychiatric illness at some point in her career, regardless of where she worked or how she was treated at work. It is also possible to argue that she might not have developed a psychiatric disorder if she had not been exposed to stress at work or in her domestic life. However, it is plausible that the type of stresses that could have triggered a psychiatric illness in her case could include bullying and harassment, the stresses associated with failing confidence at work, or problems outside of the workplace, including in relationships.
… … … …
We agree that Ms Green's early life experiences could have sensitised her to the experience of harassment and to the perception of harassment."
- There are three points that arise in relation to her pre-existing vulnerability to psychiatric disorder. First it is relevant to the issue of causation. As to that there are conflicting arguments. The experts agree there was an increased susceptibility to life stresses. As Professor Fahy put it in his report dated 24 February 2005:
"Her clinical history, including the history of physical and sexual abuse, would also identify Ms Green as an individual at increased risk of adverse psychiatric sequelae to ordinary or extraordinary stressful life events. It is not difficult to understand why an individual who has been a victim of abuse should be especially sensitive to the effects of insensitive, rejecting, harassing or bullying behaviour by work colleagues or other associates."
- Professor Hirsch agreed in cross-examination (11 May – page 40) that one particular aspect of her vulnerability was a sensitivity to exclusion that could be attributed to the manner in which she had been treated as a child.
- But on the other hand the claimant plainly demonstrated a remarkable resilience in overcoming her deeply troubled childhood, a point made forcefully by Professor Hirsch. In describing her in the course of cross-examination (11 May – page 41) as …. "quite a strong and resilient individual who nevertheless has a definite vulnerability", he used the analogy of "… a tough man with a lame leg except it is not visible".
- The second point that arises in relation to the pre-existing disability is the question of the degree to which the defendants were aware of that vulnerability, one of the factors identified by Hale LJ in Hatton v Sutherland as relevant to the issue of liability. Thirdly, a further point identified by Hale LJ, the degree of pre-existing vulnerability, is relevant to the issue of damages.
- The experts are essentially in agreement as to diagnosis. Their conclusions are succinctly summarised in the following terms:
"There is no major difference between us on the question of the diagnosis of Ms Green's psychiatric illness. We agree that Ms Green developed a Major Depressive Disorder in late 2000. This episode lasted until shortly prior to her return to work in March 2001. We agree that over the next few months, Ms Green's psychiatric disorder was in remission, and that, in formal diagnostic terms, she did not become psychiatrically ill again until September 2001. This second episode of major depression lasted until May 2002. Although Ms Green was not clinically depressed between the two episodes of depression, we agree that following the first episode her sensitivity to stresses or events undermining herself-esteem was increased.
… … … …
In respect to her second episode from September 2001, it is well established that each episode of severe depression is associated with a significantly increased risk of a further episode. This phenomenon is called 'kindling' and may explain Ms Green's apparently low threshold to relapse following the depression in the autumn of 2000."
- They continue that her mood has fluctuated since mid-2002, and that for most of that period she did not meet the usual diagnostic criteria for a major depressive disorder, save that there was a period of clinically significant depression from early to mid-2004.
- The relationship between the two episodes of psychiatric illness was explored in cross-examination with both experts. There was a difference in emphasis, but not in my judgment a difference of significance with regard to the issues that I have to resolve.
- In short Professor Hirsch expressed the view at paragraph 69 of his second report dated 8 December 2005 that "… her second breakdown is in effect an extension of her first breakdown." When asked about her condition between March 2001 and September 2001 Professor Fahy said in the course of his evidence:
"She was substantially recovered from the previous episode of depression although she retained her prior vulnerability and added vulnerability arising from that most recent episode. But essentially she certainly no longer met diagnostic criteria for mood disorder during those months."
- CAUSATION
As the experts observe in their joint report, in view of the stark conflict of evidence as to the allegations of bullying and harassment, they are not in a position to give a final view as to causation. The issues of causation will depend upon my findings of fact. But both experts have commented on causation from their clinical perspective. There is a divergence of view as can be seen from the following extracts from their joint report.
"In Professor Hirsch's view, Ms Green's experiences in the workplace were of critical importance in the aetiology of her psychiatric illness. In his view, Ms Green's account of her harassment by female office staff appears to have been accepted as a valid complaint by her employers, and it is likely that it caused Ms Green to experience much distress, which could have been prevented by her employers if they had ensured that Ms Green's workplace was free from such harassment, or if allegations pertaining to this alleged harassment had been acted on promptly and decisively. In Professor Hirsch's view, the events described by Ms Green as bullying were sufficient to precipitate a psychiatric illness, even more so in an individual with prior vulnerability. Professor Hirsch is of the opinion that factors outside of work were of lesser importance in causing Ms Green's psychiatric illness. He believes that in the end, Ms Green was worn down by events, and that the alleged stresses at work were necessary factors in determining her breakdown in October 2000. From then on, she would have been especially vulnerable to a relapse of her condition.
… … … …
It is Professor Fahy's view that Ms Green's depression was of multi-factorial origin. He acknowledges the problems at work contributed to the onset of her illness, though he does not make a judgment about the precise nature of these difficulties. It is unlikely, in Professor Fahy's view, that Ms Green's experience of alleged harassment by female office staff was a major contributor to the on-set of her psychiatric illness, and, in any case, Professor Fahy understands that this problem had been addressed and largely resolved prior to the on-set of her depression. In Professor Fahy's view, the significance of Mr Preston's alleged behaviour is not easy to judge. In Professor Fahy's view, it is not difficult to envisage a scenario where Ms Green would have been distressed by Mr Preston's behaviour (if her description of this behaviour is correct) i.e. interfering with her work, claiming credit for her work, taking over some of her high profile tasks etc. However, even based on Ms Green's account of the incidents, Professor Fahy is of the opinion that Ms Green's allegations about Mr Preston do not constitute a foreseeable cause of psychiatric illness. Instead Professor Fahy is of the opinion that these stresses (or, alternatively, the stresses associated with difficulty coping and performing at work) combined with Ms Green's relationship problems …… and her long-standing, recurrent vulnerability to depression, account for the cause of her psychiatric illness."
… … … …
We agree that Ms Green remained in a sensitive state following her return to work. Although her boss may have attempted to protect her from his colleague's views about Ms Green's suitability to work on a specific project, this protection was undermined when Ms Green accessed her boss' e-mails. We have seen no evidence from the clinical records suggesting that Ms Green was exposed to bullying, harassment or other significant stresses arising from her responsibilities and workload following her return to work although exposure to Mr Preston was a known disturbing factor for Ms Green."
- Both consultants amplified their views, in particular as to the causal relationship between the alleged behaviour of the four women who worked in close proximity to the claimant in 1997/1998 and her first breakdown in October 2000, in their oral evidence. Professor Hirsch said:
"Well I think that if we accept that this behaviour went on by the women and if we accept that this moved on to other difficulties, particularly with Stuart Preston, that is what I have in mind at the moment, and then the two were not exclusive. One, in the first place there is a link because he was involved with the women in the latter part, and, secondly, his behaviour may have been even more important because she could not be relieved of it and she could not, he would not stop, if you accept the evidence that he was continuing to do things to undermine her and that she felt threatened. So, and I think I have laid the ground for difficulties at work that they are, they would still be contributory, but I do not think in and of itself given the gap of time that they would be sufficient."
- In other words he accepted that of itself the bullying behaviour by the four women could not have caused the first breakdown given the lapse of time. But he went on to say that the behaviour to which she was exposed had to be viewed as a whole, and not broken down into individual components so far as causation was concerned.
- In cross-examination Professor Fahy agreed that if there was a continuation of the course of bullying and harassment, but with different people becoming the principal perpetrators, then the earlier bullying by the four women would still be a causative factor. Mr Glancy QC put the question:
"If that is the picture (bullying by the four women in 1997-1998 with other bullying and harassment such as undermining of her work coming into play) then the causative effect, I suggest, of the earlier bullying will, as it were, be carried on by the superimposition of the later events; is that fair?
It is fair if one set of problems is overlapping into another. I think that is a reasonable conclusion."
- As to prognosis the experts agree that the claimant is capable of future employment, but "… that for the foreseeable future she is not well suited to employment in a very demanding pressured and competitive workplace." They also agree that the longer term prognosis may improve following resolution of this case and a successful return to work.
- THE FACTUAL ISSUES
The factual allegations upon which the claimant seeks to found her claim can conveniently be addressed by dividing her employment into three periods, first the period from October 1997 to mid-1998 in which her allegations are directed at the four women with whom she worked in close proximity, secondly the period from mid-1998 until her first breakdown in November 2000, and thirdly the period from her return to work in March 2001 until her second breakdown in October 2001. But it has to be borne in mind, first that there is some degree of overlap in relation to the first and second periods, and secondly that it is the claimant's case that it was the cumulative effect of all of the behaviour to which she was subjected during her employment that led to both her first and second breakdowns. I shall address the issues of breach of duty, foreseeability of injury and of vicarious liability in the conclusions that I shall draw in relation to each of the three periods, but will defer the issues of causation for consideration at a later stage.
- OCTOBER 1997 – MID-1998
The claimant's allegations with regard to this period are directed to the activities of the four women with whom she worked in close proximity, Valerie Alexander, her personal assistant Fiona Gregg (Taylor), the telephone directory administrator Daniella Dolbear, who reported to Ms Alexander, and Mr Elliston's secretary Jenny Dixon. The claimant alleges that she was subjected to childish, hostile and inappropriate behaviour, and harassment and bullying from this group, and that no adequate or effective steps were taken to prevent or control such behaviour when it was brought to the attention of both her managers and the defendant's HR department.
- The defendant's position as to such allegations has shifted. In the defence in its original form (paragraph 4.2) the allegations were "… not admitted and required to be proved". In the re-amended defence, that phrase was struck out and replaced by the word "disputed"; and a succession of witnesses called by the defendant stated that they had not seen any inappropriate behaviour in the department by the four women in question. But as the evidence emerged it became increasingly untenable for it to be disputed that there had been wholly unacceptable behaviour on the part of the women in question, and in his written closing submissions Mr Brown, counsel for the defendant, conceded "… that the Court is likely to accept, on the evidence it has heard, that in the initial period of her employment the claimant was subjected to inappropriate behaviour at the hands of Ms Taylor, Ms Dixon and Ms Dolbear, of the general nature described …". He continued "The defendant does not in any way seek to excuse such behaviour and deeply regrets that the claimant should have been subjected to it." Notwithstanding that concession it is necessary to consider the evidence as to such behaviour for a number of reasons. First the defendant does not accept vicarious liability for the group's behaviour, nor that the management and/or HR failed to act appropriately in response to the information that they were given about it. Secondly there is an issue as to whether such behaviour gave rise to a foreseeable risk of psychiatric injury. Thirdly there is an issue as to whether there is a causal relationship between such behaviour and the claimant's breakdowns in November 2000 and October 2001. Fourthly the reliability of the claimant's evidence as to her treatment at the hands of the group provides a guide as to the reliability of her evidence as to the second and third periods.
- I therefore propose first to consider the allegations made by the claimant, then to consider the degree to which her evidence is supported by the contemporary documentation and by the evidence from other witnesses.
- As to the contemporary documentation, there is a preliminary issue to address. It is a highly regrettable feature of this case that the claimant's e-mail folders have not been preserved by the defendants. The claimant contends that they would have contained further e-mails of relevance to her claim, e-mails that would be likely to have provided further support for her evidence. The information now available reveals a lamentable failure on the part of defendants. On 7 June 2002 solicitors then acting for the claimant wrote to the defendant seeking an undertaking that they would:
"… not destroy any e-mail/electronic communications from our client to any of your employees and any such communications from any employer of your bank to or about our client. For the avoidance of doubt you must supply us with hard copies of any such e-mails. We must receive your undertaking that you will do so by close of business on Monday 10 June 2002. In the absence of such an undertaking we shall apply to the Court for the appropriate injunctive relief".
- The bank replied on 10 June 2002 in the following terms:
"The Bank recognises its obligations in relation to disclosure and will comply with those obligations. However, it is not appropriate for disclosure to be given at this time.
The laptop to which your second fax refers is not your client's property. It is the property of the Bank and contains material which is not relevant to your client's claim (which has not yet been formulated). The Bank is not required to provide it to you to extract such information as you see fit.
As we have already stated, the Bank will preserve and provide disclosure of such documents which are relevant to your client's claim at the appropriate time. Accordingly, it is clearly inappropriate and unnecessary for you to apply for injunctive relief …".
- The claimant's solicitors wrote by return on 11 June 2002 saying that they accepted the Bank's assurance as their undertaking to preserve all relevant documents.
Over a year later, on 12 July 2004, the defendant's solicitors wrote to the claimant's solicitors saying:
"We are also instructed that our client has completed a server discovery for your client, but they have been unable to retrieve any e-mails from the period 1997 – 2000."
- It now transpires that in breach of the assurance that had been given, rightly understood by the claimant's then solicitors to amount to an undertaking, the claimant's e-mail folders were not saved from her machine. In the course of the trial I sought further explanation as to how this had occurred. It is not necessary for present purposes to rehearse the details. Suffice it to say that in my judgment it was the result of gross incompetence within the Bank, but despite harbouring reservations as to the reasons why the folders were not saved, I do not consider that on the information available to me it would be fair to conclude that they were deliberately deleted.
- THE CLAIMANT'S EVIDENCE
It is not necessary in the light of the concession made on behalf of the defendants to consider each and every allegation made by the claimant. This summary is intended to convey the general effect of her evidence as illustrated by some specific examples.
- A summary of the type of behaviour to which the claimant says that she was exposed is to be found in paragraph 55 of her lengthy and comprehensive witness statement dated 15 June 2005. She says that from October 1997 she was bullied and harassed by the group, and that their bullying behaviour included the following:
"55.1. Ignoring me or staring silently at me, often with their arms crossed. This was done in a way that was plainly intended to intimidate and unnerve me;
Greeting and acknowledging other members of the Secretariat department in a very overt manner, in order to highlight the fact that they were not speaking to me;
Excluding me from conversations with other member of the Secretariat department by either talking over me or pretending they could not hear anything I said;
Excluding me from group activities to which every other member of the Secretariat department would be invited, typically when booking restaurants for departmental lunches;
Waiting for me to walk past the area of the office in which they sat before bursting out laughing;
Making crude and lewd comments that made me feel uncomfortable …
Interfering with office administration by removing my name from circulation lists, hiding my post from me and removing papers from my desk.
Specifically in relation to Daniella Dolbear:
Standing inches away from my chair and chatting very loudly out loud, making it difficult for me to make or receive telephone calls. There was no need for Danni to stand this close to me other than as a means of harassing me;
Making raspberry noises with each step I took, if I was walking from one part of the office to another;
Shouting to the other women "err what's that stink in here?" and then saying "its coming from over there" (referring to me)".
- Many of the incidents that she describes when viewed individually would amount to no more than minor slights. But it is their cumulative effect that has to be considered. As the claimant herself said at paragraph 57 of her witness statement, much of the behaviour in question might seem childish and petty, but dealing with it on a daily basis had a cumulative effect.
- Shortly before Christmas 1997 the claimant says that she decided to make a complaint about the behaviour of the four women to her manager, Mr Clark. She says that he appeared very concerned and told her to try to ignore them, suggesting that she try to put up a brick wall and pretend not to hear their comments. After Christmas she continued to be ignored particularly by Ms Alexander. If she bumped into her in the corridor and smiled, Ms Alexander would simply look straight through her. If she said hello to her, she would fix her gaze into the distance above her head and ignore her. On one such occasion, and having been treated in that fashion at the coffee machine, the claimant asked Ms Alexander to tell her what she had done to make her ignore her. She says that Ms Alexander responded by saying "how dare you speak to me like that" and walking off.
- In February 1998 the claimant and Mr Preston started interviewing for a permanent secretary. Jenny Dixon, as Mr Elliston's secretary was privy to the recruitment process and to the confidential information that it generated. The claimant placed the staff hire request form, job description and job specification, including salary and grade, in Ms Dixon's in-tray. Ms Dixon then showed them to the other three, whom the claimant saw standing together by the stationery cupboard looking through the material. The claimant then asked Ms Dixon for a private word and explained that it was not appropriate for her to disclose confidential information, particularly information relating to salary. She says that Ms Dixon made no apology, but seemed to accept what she, the claimant, had said. But she says that from that point on the treatment that she received from Ms Dixon and Ms Dolbear "stepped up a gear". "They stopped talking to me completely. They wouldn't even acknowledge my presence in front of others. In the morning they would come in and quite literally say hello to everyone individually and ignore me. If I went round to their area to ask a question they would pretend I wasn't there."
- The claimant further says that by February 1998 Ms Dixon and Ms Dolbear were interfering with internal office administration so far as her work was concerned. By way of example it was Ms Dixon's job to distribute post within the department. She says that often she would not receive any post all week and then on a Friday afternoon Ms Dixon would fill her in-tray with what appeared to be a week's worth of internal post. Secondly, and until Ms Dixon left the bank, there were occasions when paper work went missing from her desk, a problem that ceased when Ms Dixon left.
- The claimant further gave evidence that there were also occasions when her name was either removed or omitted from internal circulation lists and administrative records. By way of example there was an occasion when Ms Dolbear was asked by Security to obtain each staff members' home address and contact number. The claimant completed a form, as did every other member of the department. It was Ms Dolbear's responsibility to collect the forms and return them to Security. The claimant subsequently saw from a fax to Security left on the fax machine that Ms Dolbear had excluded her name from the list of people working in the department, and discovered that she had removed the form that the claimant had returned to her.
- Although now accepting that the claimant was subjected to inappropriate behaviour at the hands of three of the group, it is submitted on behalf of the defendant that the claimant was particularly sensitive to behaviour perceived by her to be exclusionary as a result of her childhood experiences. It is therefore important to bear in mind that her perception of her treatment at the hands of the group may have been distorted by past experiences, in particular her treatment at the hands of her adoptive parents. Hence the value of evidence from other sources both as to the behaviour of this group to others and to the claimant.
- THE CONTEMPORARY RECORDS
At her first appraisal in March 1998 (see paragraph 29 above) both the claimant and her appraiser, Mr Clark, made a guarded reference to the problem. But following the appraisal the claimant raised the issue with HR as can be seen from a memorandum to Lisa Layden from Ms Alexander dated 23 March 1998. The substance of the memo was in the following terms:
"Helen and I have agreed that the best way forward is for the members of the Group Secretariat to make a new start and that there is nothing to be gained by going over new ground.
I have asked my staff to try to be friendly towards Helen and I have asked Helen to respond to this in a positive manner. I have also asked Helen to speak to me should she wish to discuss any matters regarding my staff.
I sincerely hope that this situation can now be resolved and that the members of the Group Secretariat can try to work together as a team for the good of the department and of course, the Deutsche Bank."
- Further documentary support for the claimant's evidence is to be found in the records made some two years later when she was referred by HR to the defendant's GP and by the GP to Dr Fry, a Consultant Psychiatrist. She then reported having been subject of bullying by the four women.
- THE EVIDENCE OF OTHER WITNESSES
The first witness to be called in support of the claimant's claim was Clare McCall. Ms McCall was working as a secretary in London at the material time but has since returned to her native country, New Zealand. She travelled to London specifically to give evidence in this case. She impressed me as a careful and conscientious witness whose evidence was reliable. It was highly revealing. She too had been subjected to similar treatment from Ms Dixon, Ms Dolbear, and Ms Taylor, whom she described as bullies. In her witness statement she described what she was subjected to in the following terms:
"7. When I first started at the Bank, they deliberately excluded me. The three women would walk past my desk, either on their way to lunch or when leaving the office for the day, and would make a point of communicating with every other member of staff, apart from me. If I walked past them on my way to lunch they would just blank me. If I said hello to any of them in the office they would just walk past without even acknowledging I had spoken. If they were having a conversation between themselves they would stop talking as I walked past and stare at me.
Valerie Alexander, Line Manager to Taylor and Dolbear, encouraged their inappropriate behaviour. For example Alexander never acknowledged my existence even if she was standing right next to me. Any effort on my part to be pleasant towards her was immediately rebuffed.
The attitude of these women was an ongoing concern amongst other staff members in the department. I discussed the situation with Heather Cook, Colette Wisener-Keating, Anthony Whitter, Stuart Preston and the claimant. Everyone found their behaviour disruptive and at times upsetting."
- She said that as soon as the claimant arrived in the department, the behaviour of Taylor, Dolbear and Dixon changed. They transferred their attentions from her to the claimant, and began to treat the claimant as they had treated her. In contrast to their earlier behaviour, they now began to attempt to include Ms McCall in their conversations. She described their treatment of the claimant in the following terms:
"15. They would make a point of very publicly inviting people out to lunch, but would deliberately exclude Helen. They would stand talking together, but would all go silent when Helen walked past and would then either smirk to each other or burst out laughing. They would stand with their arms folded and stare at Helen like she was a piece of trash. Dolbear, in particular, would often stand directly behind Helen's chair to conduct loud conversations with Stuart Preston and Diarmuid Cummins. It is hard to convey the impact of such behaviour, but when you are faced with it every day, as Helen was, it really starts to affect you.
In the months following Helen's arrival, the behaviour of Dixon, Dolbear and Taylor got progressively worse and the incidents of bullying increased. Helen's work started to go missing from her desk and her name was removed from internal circulation lists. In contrast to this, when Stuart Preston started work, the women fell over themselves to be friendly to him. Helen always behaved in a very professional manner towards everyone, the women included. She did not rise to their behaviour. I do not know why or how the women chose their "victims". Helen was an attractive, successful and confident woman, but she was very concerned about successfully completing her six-month probation period. When the women realised they could get away with treating her as they pleased, they spotted a weakness and went for the kill.
Heather (Cook,) Stuart (Preston) and Tony (Whitter) all witnessed the way these women behaved. Helen complained to Giles Clark, her Line Manager, about their behaviour on several occasions. I know this because I often booked the meeting with Giles for her, and afterwards, we would discuss what had been said. He always told her that she should ignore them and get on with her work. I did not agree with this and encouraged Helen to complain more often. I told her that she should go to HR with her complaint but she didn't want to jeopardise her job during her probationary period."
- I also heard evidence from Heather Cook. She too was bullied and harassed by the group. As a result she suffered from anxiety and depression requiring treatment with anti-depressants. She also gave evidence that others in the department had been subjected to similar treatment, namely Annabelle Withington, Jeanette White, Carmel O'Brian, and Linda Brown.
- It is convenient at this point to interpose the evidence of Mr Elliston in relation to Annabelle Withington. At paragraph 10 of his witness statement he said:
"I was aware of the behaviour by Valerie Alexander and Fiona Taylor, directed at other female members of staff, that could be regarded as bullying. They would tend to act as a pair in their disagreements with others in the department. I remember that Annabel Withington left the department because of continuing problems she had with Valerie Alexander and Fiona Taylor. Otherwise I do not specifically recall the names of any of the staff members involved, but I do recall some people not speaking to others. In general, I tried not to get involved in these disagreements."
- To return to the evidence of Heather Cook, she said in her witness statement that the group would tailor their behaviour towards each of their victims in order to cause as much upset as possible. She gave an example of their treatment of Dawn Wheelan who joined the department in about April 1997.
"Dawn was an extremely tidy person and would always keep her desk clear and the area around her desk tidy. In Dawn's case, the bullies would deliberately leave cupboard doors open near to her desk, knowing that she would feel compelled to get up and close them. They would then repeatedly re-open the doors after she had closed them. They would also leave lines of dirty cups across her desk so that she would have to tidy them up. Both of these may seem like trivial matters to someone who was not upset by an untidy environment, but it caused Dawn to be upset."
- She too gave evidence as to the group's treatment of the claimant. It is not necessary to set out her evidence. She described it as "slow systematic mental abuse" and added that "what may seem like a trivial act of teasing becomes far more serious when it is repeated day in day out." Her evidence provides strong corroboration for the account given by the claimant.
- Furthermore Ms Cook's evidence to the effect that Jeanette White had been treated in a similar way by the group is supported by a letter dated 3 May 1995 from Jeanette White to a member of the defendant's personnel department following a meeting that had taken place on 2 May 1995. The meeting between Jeanette White and the HR representative had been arranged at the request of Mr Elliston, the head of department. Her letter is highly revealing. It contained the following passages:
"I have sought to function in what is acknowledged to be a dysfunctional department. I have on occasion asked for help to provide an environment in which I can do my job free of politics and harassment. If at times I have expressed this with less tact than might have been called for, or expected, I can only say that under the circumstances I have attempted to overcome or rise above situations as best as I could, with no small cost to my own stress levels …. I cannot smile in the face of extreme bitchiness and mob culture. I do not seek friction, it surrounds me and at times it is impossible to move through without a reaction.
… … I wish I could express more clearly the serious problems within the department, for I feel strongly that until these are dealt with, individuals will continue to be caught in its web."
- The claimant also called Collette Wisener-Keating who was employed as a temporary secretary in the department from May 1997 until November 1997. She provided confirmation of the treatment of both Heather Cook and the claimant. She also gave evidence in her witness statement that:
"I have never experienced an atmosphere like that in the defendant's Secretariat anywhere else I have worked. The bullying was subtle, but effective enough to affect those who were its targets. The manner in which it was done was really quite unpleasant."
- The defendant called one of the women in question, Ms Alexander. In essence she denied that there was anything inappropriate in her behaviour to the claimant or that she had seen any inappropriate behaviour by the other three women in question. It was her evidence that any personal difficulties that the claimant experienced were of her own making. I found her evasive and unconvincing as a witness. There was also a revealing exchange in cross-examination when it was put to her that when the claimant tried to have a chat with her and told her that she was disappointed by her reaction to the meeting with Lisa Layden of HR and by her failure to control her staff, Ms Alexander replied "how dare you speak to a senior member of staff like that. As a senior member of staff I will speak to whoever I want and if it means not speaking to you, I will not be forced too." There was then the following exchange:
"You did say that, did you:"
What did I say in my statement?
You probably did say something ... …
Something like that
I probably did make a statement similar to that yes"
- In her memo to Ms Layden following their meeting Ms Alexander had said that she would ask her staff to be friendly towards the claimant. But it emerged in evidence that what she told her staff was that they were under threat of a written warning. That was hardly the appropriate means of attempting to establish a "new start", and encouraging friendly relations between her staff and the claimant.
- In short, where there are conflicts of evidence between Ms Alexander and the claimant, Clare McCall, and Heather Cook, I unhesitatingly prefer the evidence of the latter.
- Mr Preston also gave important evidence as to the claimant's treatment at the hands of the group. In the re-amended particulars of claim, the claimant pleaded that in about March 1998 Mr Preston told her that he had been walking behind Ms Taylor and Ms Dixon on the staircase when he had heard one say to the other "God did you see her face. We nearly got her crying this time", and the other one said "good – who does she think she is?". In his witness statement Mr Preston said that he did not recall the incident. But in his oral evidence he agreed that he had heard such a conversation, and that he had relayed it to Helen. He also said that the claimant had told him on a number of occasions that she was being mistreated by the four women. He claimed not to have seen such behaviour himself but went on to say that having overheard that conversation he did not doubt what the claimant had said to her. He said that he then became convinced that there was something sinister going on. He also agreed in cross-examination that he was aware that Ms McCall and Ms Cook claimed to have been subject to such behaviour. His evidence as to the conversation on the stairwell provides compelling support for the claimant's treatment at the hands of two of the group. He also agreed in cross-examination that on one such occasion he told her "… that if nothing was done to stop what was going on she would have a nervous breakdown", although he added that that was a figure of speech. Furthermore he raised the way in which the claimant was being treated by the group at a Friday night managers meeting with Mr Ellison, Mr Clark and Mr Cummins. He said that he was "… antagonised by the lack of any real response to what I told them."
- I turn finally to the evidence from the claimant's managers, Mr Clark and Mr Elliston. So far as Mr Clark is concerned he claimed that Ms. Cook had "… mentioned that there was some office politics, that there was some gossip, banter but not bullying." He did not accept Miss Cook's evidence that she had told him that there were occasions when "Alexander and her gang picked on me", and that he had told her that "… bullying was one of the things that you had to put up with, that he had been bullied at boarding school so knew what it was like and that she must just put up a wall and pretend that they were not there." He agreed that he had been at a boarding school, albeit as a day-boy. I find it highly unlikely that Ms Cook would have made such a reference to his having been at a boarding school and having himself been bullied, had there not been such a conversation; and it was noteworthy that a little later he said in answer to a question from Mr Glancy QC "I was not bullied at boarding school, I was probably teased." Mr Glancy then asked "did you tell her that". Mr Clark's unconvincing reply was that he did not recall the conversation. I am left in no doubt that it took place.
- With regard to the claimant he was asked about her second appraisal in November 1998 and in particular about the following entry:
"Shown willingness to help others particularly the large number of temporary secretaries we have, has tried to bring elements to the department together particularly through testing times".
- He was asked what he meant by "testing times", and replied that there were three elements, first the turnover of temporary secretaries, secondly increased workloads, and thirdly "… some aspects or perhaps lack of team spirit, team work, and the office politics."
- He went on to say that he recalled that in early 1998 "there was some misunderstandings about work." He also accepted that he knew that the claimant was complaining that a group of female members of staff had formed a clique, were ignoring her and making her feel as if she had been sent to Coventry, but claimed that he had not witnessed any such behaviour.
- The head of department, Mr Elliston, was called to give evidence on behalf of the claimant. He confirmed that the reference to internal difficulties in the claimant's first appraisal, which he had discussed with Mr Clark before signing it off, was a reference to the claimant's allegations of bullying and harassment. In cross-examination he was asked whether he regarded what was reported to him by the claimant as to the behaviour of the group to her as bullying. There was then the following exchange:
" A. I think when conduct like that becomes insistent and continuous, even though in individual incidents it may not be what you might call growing more serious, but if they become insistent and continuous then I think they do take on a different hue.
Q. You are saying such that you thought at the time it was a form of bullying.
Yes, I did."
- Mr Elliston summarised his evidence at paragraphs 59 and 60 of his witness statement in the following terms:
"59. Collectively, those responsible for the Claimant's welfare and health in the workplace let her down very badly. As the Claimant's ultimate line manager, I accept that I must take my share of such responsibility. Not enough was done to address the behaviour of employees within my department or to protect the Claimant.
60. Throughout the Claimant's career with the Bank she always seemed to me a serious but pleasant young woman who was able to get on with people. She was, however, bullied, harassed and had her confidence undermined by too many employees of the Bank and for too long…"
- At paragraph 22 he expressed his view of the claimant's line manager, Mr Clark, in the following terms:
"As a people manager I felt he was weak and was not prepared to stand up for himself or people who reported to him. I had the feeling that he preferred that personnel issues would just disappear."
- When asked in the course of his evidence what in his view should have been done to address the behaviour of employees within the department and to protect the claimant, he replied in the following terms:
"Well, as I think I said before, these situations are very difficult. There is not an obvious answer in each case. It does depend upon the personalities. I would also say that hindsight is a wonderful thing as well. Obviously looking back from things, from this point of time, one would have done things differently. But I think that it is self-evident, given that Helen Green ended up in that hospital in the way that she did, that there was a failure at the various different levels and I share the responsibility for my part in that. There were a number of people who were involved and I think they all should share responsibility for this."
- CONCLUSIONS
I am satisfied that during the period in question the claimant was treated by the four women in the manner that she described. She was subjected to a relentless campaign of mean and spiteful behaviour designed to cause her distress. I do not accept the defendant's contention that Ms Alexander was not a part of the group. I have no doubt that she was the dominant personality within it, and that she both positively engaged in the bullying behaviour, and encouraged the others. Secondly I am satisfied that the behaviour amounted to a deliberate and concerted campaign of bullying within the ordinary meaning of that term. Her perception of her treatment at the hands of the group was not in my judgment distorted by her childhood experiences. That is clearly demonstrated by the evidence that others were bullied in similar ways.
- Secondly I am also satisfied the behaviour of the four women amounted to harassment within the meaning of the 1997 Act. It occurred with great frequency, was targeted at the claimant and was calculated to cause her distress. On any view the behaviour of the women was oppressive and unreasonable.
- The question then arises as to whether the defendant is vicariously liable for the conduct of the four women. It is submitted on behalf of the defendant that the women did not work with the claimant, that their behaviour had nothing to do with either their work or hers, and that their employment simply provided the opportunity for them to behave in the way that they did. I do not agree. In my judgment there was a close connection between their employment and the behaviour in issue. It directly affected the working environment within the secretariat department; and some aspects of the behaviour involved work that one or other of the women were required to undertake in the course of their employment, see in particular paragraphs 74 and 75 above. Applying the test propounded by Lord Steyn in Bernard v Att Gen of Jamaica, I have come to the conclusion that the connection between the nature of the employment of the women in question and the behaviour in issue was so close that it would be just and reasonable to hold the defendant liable for it.
- But in any event I am satisfied that the defendant was in breach of its duty of care to the claimant in failing to take any or any adequate steps to protect her from such behaviour. The line managers knew or ought to have known what was going on. This was a long standing problem. A number of others had been bullied. Jeanette White had drawn it to the attention of HR at a meeting arranged at the request of Mr Elliston in May 1995. Mr Elliston was also aware that Annabel Withington had left the department because of continuing problems with Ms Alexander and Fiona Taylor. Ms Cook had drawn it to the attention of Mr Clark. The claimant raised the problem at the time of her first appraisal in March 1998, only six months after joining the defendant. A reasonable and responsible employer would have intervened as soon as he became aware of the problem. The claimant's managers, Mr Clark and Mr Elliston as Head of Department simply failed to take any or any adequate steps to address it. That was frankly acknowledged by Mr Elliston. Mr Clark acknowledged that he was aware of the complaints that the claimant was making, but did nothing about them. In short the management was weak and ineffectual. The managers collectively closed their eyes to what was going on, no doubt in the hope that the problem would go away.
- Had the claimant's managers intervened as they ought to have done, there were obvious steps that could have been taken to stop the bullying. It ought to have been made clear that such behaviour was simply unacceptable, and those involved warned that if they persisted, disciplinary action would follow. If necessary they could have been moved to a different location or to a different department. But by whatever means the bullying could and should have been stopped.
- It is also to be noted that there was a culpable want of care on the part of the defendant's HR department. That was conceded by Mr Walker, Head of the HR department, who said in evidence that an investigation into the bullying by the women should have been undertaken by HR following the series of meetings between the claimant and Ms Warner in March/April 2000, and also following the exit interview given by Ms McCall on 10 October 2000. But of course by that time the behaviour by the women had come to an end.
- I am also satisfied that the bullying gave rise to a foreseeable risk of psychiatric injury. Such behaviour when pursued relentlessly on a daily basis has a cumulative effect. It is designed to make the working environment intolerable for the victim. The stress that it creates goes far beyond that normally to be expected in the work place. It is in my judgment plainly foreseeable that some individuals will not be able to withstand such stress and will in consequence suffer some degree of psychiatric injury. Furthermore the claimant was a person who, to the knowledge of the defendant, had suffered depression in the relatively recent past and had been prescribed anti-depressant medication. She was therefore to their knowledge more vulnerable than the population at large.
- THE PERIOD FROM MID-1998 TO THE CLAIMANT'S FIRST BREAKDOWN IN NOVEMBER 2000
The claimant's allegations with regard to this period are primarily focused on her treatment by Mr Preston and to a lesser degree until his move to Controlling in April 2000 by Diarmuid Cummins. But as I have already indicated there is some degree of overlap in relation to this period and the first period in that Daniella Dolbear continued to work in the Secretariat department until April 2000; and the claimant continued to experience problems in her relationship with Ms Dolbear.
- It is the claimant's case that Mr Preston conducted a sustained campaign against her in an attempt to raise his own profile as against hers. It is submitted on her behalf that he undermined and humiliated her on many occasions thereby effectively destroying her self-confidence and ability to function in the bank, and damaging her reputation and in consequence her prospects. It is submitted that his behaviour to her reflected that of his manager, Mr Cummins, to Mr Clark, to whom it is alleged that Mr Cummins behaved in an aggressive, competitive and arrogant manner. She asserts that there was a highly competitive and divisive atmosphere within the department created by Mr Cummins and Mr Preston, that they were intent upon raising their own profiles, and advancing their careers at the expense of herself and Mr Clark.
- As I have already indicated it is common ground that during this period the workload in the Secretariat department increased markedly as a consequence of the merger with Bankers Trust. There was clear evidence that all within the department were working under very great pressure, and there is documentary evidence that on occasions the claimant was working for very long hours. It is her case that she was capable of meeting the demands, albeit considerable, that were made upon her. The relevance of the pressure of work within the department is that it provides the context within which to evaluate the allegations that she makes in particular with regard to Mr Preston.
- Mr Preston joined the Secretariat Department a month after the claimant. It is common ground that initially they were on good terms. As mentioned above (paragraph 90) the claimant confided in Mr Preston about the bullying to which she was subjected by the group of four women.
- In the early stages the only source of friction between them was that Mr Preston seems to have considered that he had an oversight role so far as her responsibility for report and accounts was concerned. There was no documentary evidence to support such a role, nor was his evidence supported by either Mr Elliston or Mr Clark. Mr Preston conceded in his oral evidence that at this point his approach may have been "a little gruff, a little direct."
- It is also common ground that after the initial few months of working together, their relationship deteriorated. Mr Preston ascribed the deterioration to a loss of respect for the claimant. He explained it in the following terms:
"A lot of that was to do with her work ethic but mainly it was to do with the fact that I felt she was untrustworthy as a colleague, that she would have a pattern of behaviour whereby if she, her timekeeping, or rather her ability to meet deadlines was probably a principal weakness from my perspective and when it got to the eleventh hour and she had not completed the task then she would look to blame the nearest person and very often I was that nearest person. So I took it upon myself to distance myself from her professionally. If I did not have to get involved with a project with her then I did not stop."
- The claimant has a different explanation for the deterioration in their working relationship. She felt that what had begun as friendly banter between them, became increasingly and publicly derogatory on his part. It was conceded by Mr Brown that Mr Preston used vulgar and inappropriate language at times. But it is her case that his behaviour went far beyond vulgarity and inappropriate language. She claims that his behaviour became increasingly hostile, inappropriate and offensive, and in particular involved interference with her work. Her evidence contained a number of examples that she invited me to accept as illustrative of his course of conduct over the period in question. It is necessary to consider some such incidents in detail. It is also convenient whilst considering such examples in their chronological sequence, to consider examples of the behaviour on the part of Mr Cummins of which she complained.
- The first specific incident involving Mr Preston related by the claimant occurred early in 1998. The claimant was responsible for all the overseas subsidiaries of DB Investments (GB) Ltd. including Morgan Grenfell Overseas Holdings BV. She had prepared all the paperwork for the approval of a multi-million pound transaction with an American company called GEM. She then set up a Board meeting with three statutory directors based in the defendants' Jersey office, and for the meeting prepared Board packs which included the relevant documentation and a memorandum prepared by the claimant setting out the purpose of the meeting and details of the transaction.
- Her name appeared on the memorandum and the notice of meeting and each of the documents carried the reference HEG.doc at its foot, indicating that it had been prepared by her. The claimant was due to be out of the office on the day that the memorandum was due to go out. As she was still waiting for some outstanding information for completion of the packs, she left instructions with Miss McCall, her secretary, to insert the information as soon as it was received and then to courier the packs to the personal assistant to the statutory directors in Jersey. When she returned to the office she found to her annoyance that the packs had not been sent out, that in consequence there was insufficient notice for the meeting, and that it had had to be cancelled. Miss McCall then explained to her that whilst she was away Mr Preston had told her to print off all the paperwork relating to the transaction, and had then told her to change her name to his on the memorandum and anywhere else where it appeared within the documentation. That involved transferring the memorandum to his directory in order for the footer of the document to be his. In fact Miss McCall refused to follow his instructions. When challenged by the claimant as to why he had been looking through her work, Mr Preston said that he was just interested. The claimant subsequently asked Miss McCall to tell her if Mr Preston did anything else like it again.
- The claimant gave evidence that in May 1999 she agreed to help out with a project related to the merger with Bankers Trust. She says that Mr Cummins asked her to check the name and signature of every authorised signatory for Bankers Trust against each individual trader's background. It was a relatively simple but labour intensive task, as it involved checking the details of several hundred traders. She was then required to prepare a report for the Board explaining the regulatory requirements and the degree to which they had been complied with. Mr Cummins told her that he had four days to complete the project so as to enable the London branch board to approve it at their next meeting. She worked late nights and for an entire weekend with the assistance of her secretary, Claire McCall, to finish the report in time. It was completed and tabled minutes before the meeting began. Following the meeting she was informed by Mr Clark that her report had been rejected on the grounds that the Directors had not been given sufficient time to review and digest the information that it contained. The Directors had complained about the tardiness with which the report had been completed by the claimant. Mr Cummins, who was present at the meeting, failed to inform the Directors that the claimant had had a very limited time within which to complete the exercise. Mr Clark subsequently told her that Mr Cummins had been given the project two months before and had asked Mr Preston to undertake the work a month before the meeting, but he had not done so, hence the request to the claimant to assist.
- The claimant's evidence as to this incident was corroborated by Claire McCall who worked with the claimant over the weekend to complete the task. It was Mr Cummins' evidence that he did not recall asking the claimant to do anything in relation to the merger with Bankers Trust. He may not recall it, but I accept that it happened.
- The claimant gave a further example of Mr Cummins behaviour to her. On an occasion which she placed in late 1999, she was on the telephone to Neil Lawson-May, a director of one of the group's subsidiary companies. Mr Cummins approached and asked who she was speaking to. Without warning he took the telephone from her hand, and took over the conversation. He then put the telephone on to speaker phone so that she could hear what he was saying. Mr Lawson-May instructed the claimant to carry out certain tasks, but Mr Cummins informed him that he would carry them out. When the conversation ended Mr Cummins told the claimant that he would be handling the matter on his own, and walked off without any explanation. The claimant felt that the incident seriously undermined her authority with Mr Lawson-May.
- On another occasion in November 1999 the claimant was asked by Mr Clark to complete two 'section 42's' for a re-structuring project with which Mr Cummins was involved. A 'section 42' is apparently the means by which the Inland Revenue is informed that a company should be exempt from paying tax on a re-structuring. It was necessary to submit an organisation chart showing the inter-relationship of the companies involved. The claimant was familiar with the procedure having previously undertaken such a task. Mr Clark informed her that Mr Preston had details of the transaction and could tell her which companies were involved. She duly asked Mr Preston for such information. He did not tell her how many companies were involved but said that it would take her no more than two hours per application. When she began work it became apparent to her that it was going to take much longer than two hours to complete the task. But she then realised that Mr Preston had prepared organisational charts for a 'section 42' application that he had completed in relation to the same project, and she therefore asked him for a copy. He told her that Mr Cummins had the copies. She then went to Mr Cummins' office and he told her that Mr Preston had the copies. After going to and fro between the offices she brought the two men together to resolve the question, whereupon, on her account, they baited her each saying words to the effect, "I haven't got them, have you got them?" They were grinning and chuckling as they did so. The claimant found their behaviour childish and obstructive.
- So far as Mr Preston was concerned, it is the claimant's case that when he started to work for Mr Cummins he began to adopt Mr Cummins' abrasive and aggressive behaviour. Such behaviour was directed at her in particular and he began to interfere with her work. Her evidence as to Mr Preston's behaviour was supported by Ms McCall who said in her witness statement;
"39. I also noticed that Stuart Preston had become increasingly antagonistic towards everyone in the office save for Diarmuid (Mr Cummins) who he had become very close to and whose behaviour he mirrored. He was continually putting people down – this could be the person he had just finished a phone call with, Giles Clark, or other people in the Bank. He was also making sexist comments, aimed at practically any women he came across and told to anyone who would listen. For example he was pre-occupied with asking me if I managed to "get a shag the night before". I would usually answer by saying "ha ha Stuart, you're a sad little boy aren't you". Helen often asked Stuart to "shut it" and he would then mimic her (in a derogatory tone). Whilst Stuart had always engaged in a lot of banter, it was if the friendly nature of his jokes had now disappeared. He was nasty and bitter.
40. On one occasion Stuart was criticising Giles Clark, saying he was good for nothing. Helen told him to shut up, at which he laughed and made an even more derogatory comments. Heather Cook, Giles' secretary, heard him and told him not to be so rude about Giles. Heather and Giles ended up having an argument in the office and Stuart's face became viciously angry. I told Stuart to be quiet, but he just kept going on and on. He became very nasty, he was sneering at Heather and wouldn't stop. I can't remember his exact words, but I remember that Stuart was sticking his chin out with his arms out wide, in a very aggressive manner. He looked like an English football hooligan …". On another occasion when Giles was off sick, Stuart described him, in front of the whole office as a "wimp and a poof". In response Giles always just tried to keep his head down. As far as I know he never confronted either Diarmuid or Stuart about their behaviour. When you know that a manager is prepared to be undermined and intimidated in this way, yet does nothing about it, it gives you very little hope that anything will be done to address the bullying of more junior members of staff, such as Helen (the claimant) and Heather (Cook)."
- In the passage from her witness statement set out above, Miss McCall was referring to her second temporary assignment with the Bank between May and September 1999. She returned to the Bank in April 2000, and says that the atmosphere within the department had deteriorated even further. Ms McCall finally left the bank in October 2000, and when she did so she had an exit interview with Lorraine Brown, a member of the HR department. She told Ms Brown her reasons for leaving, namely that her job had been changed without any consultation, that Mr Clark had provided her with no managerial support and "… that the atmosphere within the Secretariat department was openly hostile." She says that she told Ms Brown that the claimant was being bullied and harassed by Mr Preston, that the claimant and Mr Preston were having stand-up arguments on a daily basis, and that nothing was being done by management. A record was made of the exit interview. Under the heading "How have you viewed the way in which you have been managed whilst at DB" there is the entry "thinks Stuart is a bully." In her evidence Ms McCall says that she did not think she had said "Stuart is a bully", rather that the claimant was being bullied and harassed. The distinction is not of significance.
- On 9 March 2000, and having been referred for medical treatment (see paragraph 35, 6, 7 above) the claimant met Suzanne Warner of the defendant's HR department saying that she was very unhappy in her current role working in the Secretariat and that she wanted to let HR know what was going on in the department. Ms Warner took a full note of the meeting. She gave Ms Warner examples of the inappropriate behaviour that she had experienced within the Secretariat at the hands of Mr Cummins, Mr Preston and Ms Dolbear. As to Daniella Dolbear Ms Warner asked the claimant if "… … if she had encountered any problems with DD (Daniella Dolbear) recently she replied that she had not but she was annoyed that nothing had been done about DD bullying her when she first joined the Bank." She also complained that Ms Dolbear was 'bad mouthing' her to others in the department "… … she can't make friends and doesn't get on with people." As to Mr Cummins and Mr Preston she complained that she was snubbed by them so that she felt excluded and that there was competition both between herself and Mr Preston and between Mr Clark and Mr Cummins. She told Ms Warner that "… … she doesn't feel she is taken seriously and feels 'undermined' which has resulted in her losing confidence in herself".
- The claimant said that she felt that she needed to be more assertive, suggested an assertiveness course, and Ms Warner agreed to send her on such a course. Ms Warner also outlined the Bank's harassment policy, and the claimant said that she would give some thought as to whether she wanted to deal with the problem formally or informally. Ms Warner also recorded that she told the claimant that she wanted to ensure that the Secretariat department was given priority in receiving the harassment training being "rolled out" in London, and that they would ensure that relevant examples of bullying were included in the case studies. She recorded that the claimant was happy with that proposal.
- Ms Warner subsequently met the defendant's Chief Operating Officer (COO), Brian Cook, on 14 March 2000 to discuss her concerns regarding the working environment in the Secretariat. It was agreed that she would organise harassment training and that all of the Secretariat department would be required to attend. It was also agreed that she would brief Mr Elliston on the harassment training. That briefing took place two days later on 16 March 2000. When she told Mr Elliston that someone from his team had told her on a confidential basis that the working environment within the Secretariat was unpleasant and lacked team work, he said "… that he knew exactly what I was talking about and that Diarmuid Cummins and Stuart Preston were probably the perpetrators of this behaviour." He went on to say that he would guess that the person who had come to see Ms Warner was either the claimant or Giles Clark.
- The harassment training took place on 23 March 2000. It was the claimant's impression that the course was not taken seriously by Mr Cummins, Mr Preston, and Ms Dolbear. At one point Ms Dolbear asked the lawyer who was conducting the course, "what if you don't mind blokes looking at you and calling you breasty." The lawyer explained that it wasn't just those involved in the conversation who were affected, and that consideration had to be given to others in the office who could be offended by such comments. Mr Cummins, Mr Preston and Ms Dolbear simply laughed. The claimant also says that on their return to the office Mr Preston said:
"That was a load of crap. He (the lawyer) should have been in the pub with us last week when we were talking about the order in which we would like to shag the girls in the office."
- In his witness statement Mr Preston said "I may have made a jocular comment after the course that it had been a waste of time." He went on to say that it was a light-hearted comment not intended to diminish the seriousness of the course. His recollection had cleared to some degree by the time that he gave evidence. In his evidence in-chief he said that the subject matter of his comment was correct but "… the use of the words is not." When asked what words he did use, he said that he could not recall. He accepted that what he said was inappropriate and that he should not have said it. It is also to be noted that at that point arrangements were made for Mr Preston to attend an over-assertiveness course, although in the event he did not do so.
- When Mr Cummins left the department in April 2000, Mr Preston had hoped and expected to get his job. He accepts that when that did not materialise he was very disappointed. In fact Mr Cummins' duties with regard to the Legal Entity Committee (LEC) were split three ways between Mr Preston, the claimant and Adam Rutherford (see paragraph 39 above). On 7 April 2000 the claimant had met Ms Warner to discuss the inappropriate comments that Mr Preston had made after the harassment training course, and it was agreed that the claimant would herself speak to Mr Preston. She did so following the distribution of Mr Cummins responsibilities. The claimant's account of their meeting is that she told him that she was not prepared to work with him as things stood because she didn't trust him. He told her that it was nothing personal and that he was just looking after his career. He said that he believed that he should have been given Mr Cummins' job. The claimant told him that if they were going to work together he would have to change his attitude towards her, and that she wasn't going to tolerate any more games from him. He appeared to agree that things would have to change and then said "your not going to hold any grudges are you?". She told him that he was the only bully left in the department and that she was not going to put up with it any longer.
- It is the claimant's case that notwithstanding that Mr Elliston had directed that Mr Cummins' work should be divided between herself, Mr Preston and Mr Rutherford, if Mr Preston received telephone calls relating to business that should have been directed to the claimant, instead of transferring the call to her, he would either deal with it himself or tell the caller that he would instruct the claimant to do the work giving the impression that he was her boss. She said that on every occasion that he did so, she told him that he should not be dealing with her projects, but that he kept telling her that he was trying to be helpful. Yet in contrast he did not behave in the same manner so far as Mr Rutherford was concerned.
- That evidence is supported by that given by Ms. McCall who said in her witness statement that she was witness to Mr Preston's repeated attempts to antagonise the claimant. She described what was happening in the following terms:
"46. … When Diarmuid (Mr Cummins) left (the department) he sent out a group e-mail informing people that Stuart would be taking over all his work and providing his contact details. In fact, it was decided that the work should be split equally between Stuart, Adam Rutherford and Helen (see paragraph 126 above) as a result of Diarmuid's initial e-mail, however, Stuart received the vast majority of calls relating to Diarmuid's work. He would always pass callers immediately on to Adam when the work was something he was responsible for but when it concerned Helen he would deal with the call himself, telling the caller that he would get Helen on to it, thereby giving the impression he was Helen's boss. He often did so with Helen sitting no more than two feet away from him and Helen repeatedly asked him to stop it. Stuart took no notice and continued with this. It seemed he would take any opportunity to steal Helen's work or not pass on information to her … …. I did not see him behave like this to his other colleagues."
- The claimant gave a number of specific examples of such interference in her work by Mr Preston, examples that feature in the contemporary documentation. She says that there were many more examples that would have been evidenced by e-mails within her lost folders. It is submitted on behalf of the defendant that had there been any further such examples, then the relevant documentation would have survived in e-mail folders other than the claimant's, in particular Mr Elliston's, which were preserved at least in part, although Mr Elliston says in his witness statement that the record is not complete. It is not however necessary for present purposes to resolve this issue as the examples to be found in the surviving documentation provide clear illustrations of the behaviour of which the claimant complains.
- The first such incident occurred on 30 May 2000. It is necessary first briefly to set the context. There were weekly 'Pipeline' meetings to discuss the progress of transactions that would in due course be presented to the LEC. On the day in question, and just before leaving the office to go to a 'Pipeline' meeting, Mr Preston handed the claimant a new transaction application relating to one of the business areas for which the claimant was responsible. The claimant asked him when it had come in. He told her not to worry because it didn't need to be discussed at the meeting. But at the meeting David Penfold, the Head of Legal Entity and Structuring and Analysis (Controlling) asked whether there were any other matters that people should know about. Mr Preston said that there was a transaction coming up, and went on to provide details. It was the proposal that he had handed to the claimant minutes before the meeting. The claimant was unable to comment on the proposal. She sat in silence while Mr Penfold gave Mr Preston instructions to follow up on the transaction. When the claimant confronted Mr Preston immediately after the meeting, he insisted that he hadn't set her up on purpose and that it was an accident. The claimant immediately complained by e-mail to both Mr Elliston and to Ms Warner in HR. Mr Elliston then e-mailed Ms Warner in the following terms:
"Following Diarmuid's departure, Legal Entity Committee … … work is split three ways; Stuart – Structured Transaction Group companies (STG); Adam – REIB companies; and Helen eCommerce and other. Although Stuart assumed that he would step into Diarmuid's role, I told him at the start that Diarmuid's workload would be split three ways in the interim until I recruited." Each is responsible for co-ordinating/following-up on transactions arising from these groups of companies and speaking about them at the LEC meetings and at the 'in-between weekly meetings' called the Pipeline.
The way this work is allocated between the three is very clearly stated in writing and repeatedly orally at a number of meetings. As a result of evidence that Stuart was still representing to people outside the department and in LEC meetings that he was responsible for work actually allocated to the other two, I confirmed the ground rules to Stuart only last Friday. This was in a meeting attended by all three and there was some very plain talking. I emphasised specifically that that he is not authorised to represent to others that he is the man in charge as far as LEC is concerned, that he may (not) speak on behalf of the other two in discussing their transactions with colleagues in other parts of the bank, and that if he is phoned by someone about a REIB transaction (Adam) or an eCommerce transaction (Helen), then he should simply transfer the call or pass on a message to Adam or Helen, respectively.
I understand that yesterday morning at 10.00 a.m. he received a call from someone about an eCommerce transaction and tried to deal with it himself instead of handing the call over to Helen as an eCommerce matter. He then only remembered to mention this to Helen (who sits next to him) ten minutes before they left for the Pipeline meeting yesterday afternoon with a result that when this item came up for comment at the meeting, Stuart was in a position to say something about the transaction rather than Helen. People round the table therefore think that Stuart is handling it. Although Stuart tells me that he is overworked, I see this as:
(i) a deliberate attempt to take work off colleagues to raise his own profile and correspondingly deny them work and profile
(ii) in direct contravention of my instructions most recently confirmed the previous working day.
I will speak to him to-day. I would like to have your advice whether I should also warn him that next time it will be a disciplinary proceeding."
- Jessica Bailes of the HR department replied to Mr Elliston saying that he should make it very clear to Mr Preston that he considered his behaviour to be unacceptable and that he was giving him an informal 'off the record' warning.
- The LEC transaction in question involved BT Sociedad De Valoresa. The relevant e-mails show that Mr Preston sent the templates on which a proposal had to be prepared to a Mr Rihmland, who had made the enquiry, no doubt by telephone, at 10.11 on 30 May 2000, and that it was not until 14.40 that he sent a further e-mail to Mr Rihmland telling him to liaise with the claimant as the "principal contact for eCommerce proposals". Mr Preston claimed that there was nothing sinister in the delay, that he was under very heavy pressure of work at the material time.
- There was a further incident on 19 June 2000. There was an e-mail from Mr Preston to a Mr Frank Quinn timed at 14.09, saying that "your principal contact for the UK LEC should be Helen Green. Apologies for the confusion." It was copied to the claimant, and she forwarded it to Mr Elliston at 23.09 that night saying that it indicated that Mr Preston was still assuming himself as the point of contact for transactions for which she was responsible. She continued:
"Instead of forwarding the info on and stating that Helen will be dealing with it, again, I had to ask Stuart to inform the business line that I am the contact. Stuart apologised and said he was too busy to think about what he was doing because the requests came in so fast and he just followed Vaughan's instructions."
- There was another incident seven days later on 21 June 2000 with regard to a proposal with regard to Swapswire. At 11.20 Mr Preston was sent an e-mail by Emma Slatter in G Group Legal attaching the latest draft of the 'Swapswire JVA'. At 12.14 Mr Preston copied it to the claimant saying that it was an eGCI proposal "… … so one of yours." But his email went on to say that he would respond as follows, giving details. The claimant replied at 13.34 saying:
" Stuart,"
Thanks for your in-put. However, Emma sent us both a further e-mail at 11.30 a.m. stating that she noticed 'that I was responsible for e Commerce, so there was no need to point this out to me. Your intentions may be to help me out here, but you come across as trying to 'manage' me. Please let it go, you are not responsible for my work – you're suffocating me!"
- In July 2000 the claimant discovered that Mr Preston had been attending meetings for two companies for which she was Company Secretary, Morgan Grenfell Investment Services Ltd. and Morgan Grenfell Investment Holdings Ltd. On one occasion he had convened Board meetings for each of the companies immediately before a Pipeline meeting. The claimant attended the Pipeline meeting and was also present when the Board meetings took place. It was only when the first Board meeting started that she realised that it was a company for which she was Company Secretary. When the minutes were subsequently distributed and signed by Mr Penfold as Chairman, the claimant saw that Mr Preston had put himself down as Company Secretary and the claimant as an attendee. When she confronted Mr Preston about his actions, he told her that the companies were going through a re-structuring and were going to be his responsibility in the future. That was something of which she was unaware. On a further occasion in July 2000 Mr Preston was on the telephone to someone in New York for about twenty minutes. The claimant heard him tell the person to whom he was speaking that "… … he would instruct Helen Green in what to do and to make contact." As soon as he finished the call, she asked him what he was doing; and he told her that "it was an eBusiness transaction just come in, it's urgent so it needs to go on the Pipeline meeting agenda ASAP." She asked him why he hadn't transferred the call to her instead of becoming involved and representing himself as her boss. The confrontation ended in a shouting match conducted in Throgmorton Avenue outside the defendant's offices.
- On 21 July 2000 there was another incident evidenced by the contemporary documents. Four days before, on 21 July, Mr Penfold sent an e-mail to Hans-J Eckhardt, copied to Mr Preston, with regard to DFS GB. It related to a new transaction involving one of the companies for which the claimant was responsible. On 25 July Mr Preston sent an e-mail to Mr Eckhardt attaching the standard proposal templates, and saying that the next LEC meeting was to be held on 8 August. He then immediately sent the claimant an e-mail saying:
"Although this is a non-STG proposal, it is to become a sister company of BCH and DFS (UK), of which I will become Secretary, so I think it would make sense for me to deal with this particular one. Do you agree?"
- Upon receipt the claimant copied the e-mail to Mr Clark and Mr Elliston asking for their advice. Mr Elliston replied that it was her responsibility to see the transaction through and that the appointment of a Secretary for the company, once it was 'within the folder' was a different matter. But the claimant replied to Mr Preston at 11.15 saying that she thought it would be unwise for her to pick up the transaction at this stage as he had already assumed responsibility for it and had made himself the point of contact. But there was a subsequent meeting between Mr Elliston, the claimant and Mr Preston at which Mr Preston became angry and shouted at the claimant, saying that she should have spoken to him "before running off to HR and Richard." The argument escalated. The claimant told him that he had been trying to steal her job for years. His response was defiant. He said "prove it", and at that the claimant suggested that Ms McCall be invited to join them so as to confirm the incident in April 1998 when he had told her to remove the claimant's name from a memo and send it out with his name on it as if the work was his (see paragraphs 113-4 above). The claimant says that his demeanour suddenly changed and that he promised that he would do something about his behaviour. But she says that from that point on she and Mr Preston were having shouting matches on a near daily basis, and that every day she went to work she felt as if she was walking into battle.
- Both Ms McCall and Mr Elliston gave evidence as to Mr Preston's interference with the claimant's work. Ms McCall's witness statement contains the following paragraphs:
"27. Stuart (Preston) like to find out what work Helen was involved in; it was as if he wanted to have a finger in every pie. On occasions when Helen was not at her desk, Stuart would pick up her phone calls. There was no need for him to do this as I was usually around to take a message for her. Instead of simply taking the caller's name and number, however, Stuart would enter into a discussion with them about the precise nature of their query and what it was that they wanted Helen to do. He would then say something like 'leave it with me' or 'I'll check where Helen has got to with this'. This created the impression that he was in a position of authority. If the caller's query related to a project that Stuart thought would raise his profile within the bank, he would take the work on himself. As Helen's PA, it was my responsibility to answer her calls and pass messages on to her, and I frequently reminded Stuart of this. He paid no attention to me and it almost became a race between us to get her calls. I never saw him make any attempt to intercept any other person's calls."
28. The more Stuart intercepted her calls, the more agitated Helen became, often confronting Stuart and asking for an explanation. He always just shrugged it off. Over time, Stuart's behaviour created an unnecessary and unhealthy competitiveness between himself and Helen. This was fuelled entirely by Stuart and was not, as far as I could tell, something that Helen wanted to participate in...
46…When Diarmuid (Mr Cummins) left (the department) he sent out a group e-mail informing people that Stuart would be taking over all his work and providing his contact details. In fact it was decided that the work should be split equally between Stuart, Adam Rutherford and Helen. As a result of Diarmuid's initial e-mail however, Stuart received the vast majority of calls relating to Diarmuid's work. He would always pass callers immediately on to Adam when the work was something that he was responsible for but when it concerned Helen he would deal with the call himself, telling the caller that he would get Helen on to it, thereby giving the impression he was Helen's boss. He often did so with Helen sitting no more than two feet away from him and Helen repeatedly asked him to stop it. Stuart took no notice and continued with this. It seemed he would take any opportunity to steal Helen's work or not pass information to her…I did not see him behave like this to his other colleagues."
- Similarly Mr Elliston said in his witness statement:
"28. Preston, in particular, orchestrated a campaign to constantly undermine the claimant in her work, interfering to the extent that he made life for the claimant very difficult. When Cummins transferred out of the Secretariat department in April 2000, Preston simply assumed that he would take over his job (which would have been a significant promotion). This was not the case. Instead Cummins' work was split three ways between Preston, the Claimant and …Adam Rutherford. The way in which the work was allocated between the three was very clearly defined, but Preston persistently assumed responsibility for work that was within the claimant's remit. I saw this as a deliberate attempt by Preston to raise his own profile while denying the claimant work and a similar profile. I told Preston in clear terms that he was to stop interfering with the claimant's work in this way, but he continued to do so. Eventually I wrote to Susanne Warner in HR about the problem, seeking her advice (email dated 31 May 2000)"
- THE SCOTT DOBBIE INCIDENT
Mr Dobbie was a Director of DB Pension Fund Ltd., of which the claimant was Company Secretary. On 27 July 2000 there was a meeting of the Board. In the course of the meeting Mr Dobbie rose and excused himself to go to another engagement. The Chairman asked the claimant whether there was anything else that needed to be dealt with before Mr Dobbie left. She asked him to confirm his availability for the next meeting as it had previously proved difficult to get all of the Directors together. At that Mr Dobbie started shouting, launching a personal attack on her and the quality of her work. After the meeting one of the other Directors told the claimant that he was very embarrassed at Mr Dobbie's behaviour and that she should take the matter to HR. She did so. A full investigation was held. All of those who had attended the meeting were interviewed and confirmed her account of what had occurred. The Chairman was interviewed and confirmed that Mr Dobbie's comments regarding the quality of her work were unfounded. HR asked her what action she wanted to take and she said that she sought a public apology from Mr Dobbie at the next Bankers Trust Pension meeting. She was subsequently informed by HR that Mr Dobbie had agreed to apologise to her. In the event he failed to do so. She followed him out of the meeting and told him that she was disappointed not to have received an apology. She says that he said: "Did you really think that I was going to make an apology to you.", and went on to say "you want to watch who you are talking to young lady. Do you want me to write a formal letter to the Trustees to have you removed, do you? Because that is what I will do if you don't just drop this rubbish now." After further unsatisfactory exchanges Mr Dobbie left, and the claimant subsequently reported what had occurred to Mr Elliston. He told her to report what had happened to HR.
- It was shortly after that encounter with Mr Dobbie that the claimant went on holiday, and on her return from holiday was admitted to hospital in the circumstances set out in paragraph 40 above.
- During her absence from work the claimant spoke to Lorraine Brown in the defendant's HR department on two occasions. On 18 December 2000 they spoke by telephone about the continuing cost of her medical care. According to the claimant Ms Brown also asked if the claimant thought that her breakdown had been caused by work related issues. She said that it had and that she "… had been bullied by Stuart Preston and Diarmuid Cummins and that Richard Elliston had simply let it happen." She also says that Ms Brown asked if she would be willing to make a formal complaint against Mr Preston but she replied that at that stage she was too ill and not strong enough to go through with a formal complaint.
- Ms Brown gave a somewhat different version of accounts. At paragraph 8 of her witness statement she referred to arrangements being made for the BUPA medical cover to be extended and continues:
"It is while she was hospitalised that I first heard of her allegations that she had been bullied by Valerie Alexander, Daniella Dolbear, Jenny Dixon, and Fiona Taylor, and her allegations that Stuart Preston was taking her work and, with Diarmuid Cummins, was belittling her and making her look as if she was not good at her job."
- In any event they had a further telephone conversation on 12 February 2001 evidenced by file note made by Ms Brown. The relevant paragraph is in the following terms:
"HG said that she would also like to speak to LB about what had led her to be ill in the first place. LB said that this would be fine. HG said that she wanted to speak about the department and all the problems there, and speak about the management and what has been done about them, LB replied that they would speak when she returned. HG said that she doesn't want to return to a department that hasn't changed and she thinks it's disgraceful that everyone knows what the department is like but nobody does anything. LB said that the department had changed staff since she had been away, HG said this was not the point and that management had not been changed, LB did not comment …".
- The claimant contends that in the course of that conversation Ms Brown specifically assured her that she would not have to have any contact with Mr Preston on her return to work.
- On 11 March 2001 the claimant wrote to Ms Brown in the following terms:
"Further to our interchanges regarding my health, I re-confirm that due to the working environment within the department my health deteriorated to the point that I was admitted to the Florence Nightingale hospital on 8 November 2000 suffering from chronic depression. After recent discussions with doctors I believe I am well enough to return to my job, on 12 March 2001, however to prevent my health from deteriorating again the following will have to be implemented:
Ex-employees to only enter the department on the invitation of the management;
Personnel to draw up guidelines/procedures for managers to follow proactively when witnessing harassment.
At the present time I am not well enough to make decisions regarding taking action against any member of staff who contributed to my ill-health, however, the above points must be taken in hand immediately.
Provided that the above points are satisfactorily implemented it is my hope to return to my existing position within Secretariat for the purpose of continuing my job on a full-time basis, and to continue my career within Deutsche Bank."
- Had Ms Brown expressly agreed in the telephone conversation of 12 February that the claimant would not have any contact with Mr Preston, then I have no doubt that that would have been recorded in the claimant's letter of the 11 March in which she was setting out what she regarded as her conditions for her return to work. Furthermore I regard it as inherently improbable that Ms Brown would have felt herself to be in a position to give such an undertaking. For those reasons I prefer the evidence of Ms Brown that she did not give any assurance to that effect.
- CONCLUSIONS
I accept the evidence of the claimant as to her treatment at the hands of both Mr Preston and Mr Cummins. Her evidence is supported to a substantial degree by the evidence of Ms McCall and Mr Elliston. Furthermore the fact that I found her evidence in relation to the first period to be reliable, is a further reason for accepting her evidence as to this period. It follows that where there is a conflict with the evidence of Mr Preston or Mr Cummins, I prefer that of the claimant. I found Mr Preston to be a quick witted and self assured individual. But in his account of his relationship with the claimant, he gave what I found to be glib and self-justificatory answers. He was at times evasive, in particular in relation to the exchange to which I have made reference at paragraph 124-5 above. As to Mr Cummins the impression that he gave was of a forceful, highly competitive and arrogant personality, dismissive of those whose work he did not respect or who did not share his overtly competitive attitude to his fellow employees. It is clear that Mr Preston regarded him as a role model, and that that influenced Mr Preston's behaviour to the claimant.
- I am satisfied that Mr Preston conducted a concerted campaign to advance himself within the department at the expense of the claimant. He was aggressively competitive towards her, a competitiveness that manifested itself in a number of ways. First it is clear that both he and Mr Cummins formed an adverse view of her capabilities, a view for which in my judgment there was little foundation bearing in mind the consistently high level of performance recorded in her regular appraisals. I reject the reason that he advanced for his loss of respect for her (see paragraph 111 above), but it is clear that his lack of respect resulted in his treating her in a dismissive and hostile manner. I also accept the claimant's evidence (see paragraph 126 above) that when she confronted him about his attitude towards her in April 2000, he tacitly accepted the complaints that she was making.
- The second and central respect in which Mr Preston's competitiveness and lack of respect for the claimant manifested itself was in his interference with her work. His actions were plainly designed to advance his profile within the company at her expense, and on occasions to give the impression to outside agencies that he was her boss. I have no doubt that he saw her as a rival, and deliberately set out to undermine her. Moreover he persisted in that conduct notwithstanding the attempt by Mr Elliston to control his behaviour (see paragraph 139 above). I have little doubt that Mr Preston saw this as a Darwinian 'survival of the fittest'.
- The question is whether his behaviour amounted to bullying within the ordinary meaning of that term. Bullying can take many forms. As I have already observed, and as was acknowledged by the claimant, the incidents upon which she relies when viewed individually are not of major significance. It is their cumulative effect that is of importance. His behaviour to her was domineering, disrespectful, dismissive, confrontatory, and designed to undermine and belittle her in the view of others. I am satisfied that such a course of conduct pursued over a considerable period amounted to bullying within the ordinary meaning of the term. The claimant was correct to describe it as such in her confrontation with Mr Preston in April 2000. So too was Ms McCall when describing him as a bully in her exit interview in October 2000 (see paragraph 120 above).
- Such conduct also amounted to harassment within the meaning of the Protection from Harassment Act 1997. It occurred frequently, was targeted at the claimant, and was calculated to cause distress. In my judgment it was also oppressive and unreasonable.
- I am also satisfied that Mr Preston knew or ought reasonably to have known that his conduct, relentlessly pursued over a considerable period of time, might cause the claimant harm in the form of psychiatric illness or injury. He was aware of the effect that the bullying by the four women had had on the claimant. It was he who had said to her that if nothing was done to stop what was going on, she would have a nervous breakdown (see paragraph 90 above). In evidence he added that that was a figure of speech; but it was a recognition on his part of the effect that stress induced by bullying may have. He must also have been aware of the effect that his behaviour was having on the claimant. As with the case of the behaviour of the four women in period one, it was in my judgment reasonably foreseeable that such a sustained campaign designed to undermine her confidence and to undermine her in the eyes of whom she had to have contact in the course of her work, was likely to cause anxiety and depression, and that such anxiety and depression could be sufficiently serious to amount to a psychiatric illness.
- The remaining issue with regard to Mr Preston is whether the defendant is vicariously liable for his conduct. The behaviour in question was directly and intimately connected to the work that he was engaged to perform. The behaviour was in my judgment clearly within the scope of his employment, and sufficiently closely connected to his work to give rise to vicarious liability.
- As to Mr Cummins, he was not the claimant's line manager at any stage. His involvement with her was limited. I do not regard his treatment of her in the incidents set out above as of themselves having occurred with a sufficient degree of frequency to have amounted to a campaign of bullying. The significance of his behaviour is that his dismissive attitude to her, well illustrated by the incidents described above (paragraph 117-118 above), is likely to have influenced Mr Preston by signalling that such behaviour was acceptable within such an organisation.
- As to the Scott Dobbie incident, it is clear on the evidence that Mr Dobbie's behaviour was unjustified and deeply discourteous. It is another example of aggressive and domineering behaviour to someone in a junior position. Secondly, and whilst the incident is of causal relevance, a point to which I shall return, I do not consider that of itself it was actionable in tort. It was a discreet incident unconnected to the concerted campaign of bullying inflicted on the claimant in the first period and by Mr Preston in the second.
- PERIOD THREE – FROM THE CLAIMANT'S RETURN TO WORK ON 13 MARCH 2001 UNTIL HER SECOND BREAKDOWN IN OCTOBER 2001
The claimant's case in relation to this period is essentially that the defendant failed to manage her return to work with sufficient care, and in particular failed to prevent further exposure to Mr Preston. Mr Preston had by that time moved out of the department. Furthermore the claimant was now answerable to Mr Bartlett, who had joined the Secretariat Department in her absence. On her first day back she had a meeting with Mr Bartlett, and a job schedule for the next six months was agreed. Her recollection is that they talked about Mr Preston, and that Mr Bartlett told her that she did not need to tell him about Mr Preston because he had already "experienced" him, and that he understood to a certain degree what she had gone through.
- Although Mr Preston was no longer working in the department, members of the department were speaking to him by telephone on work related matters on a daily basis. The claimant said in her witness statement that when she heard others speaking to Mr Preston by telephone or heard his name she "… … would get heart palpitations and a thumping headache". She told Mr Bartlett about the effect that even hearing his name was having on her.
- On 19 April 2001 she was at her desk when she looked up and saw him dart across the room. She looked down, and when she looked up again he had gone. She says that she felt faint "it was as if I was being choked." It took some time for the sensation to pass and for her to compose herself. She then complained to Mr Bartlett about seeing him, and he told her that Mr Preston had telephoned in advance to ask he could come to the department, and Mr Bartlett had told him to come at a time when he knew that the claimant would be out of the office. Mr Bartlett made a record of his conversation with the claimant. It contains the following passages:
"SP had come in to undertake some research in the library, having arranged this with me first (the timing of his visit was to coincide with the departmental lunch which Helen was attending). However, he was still here when Helen arrived back.
Helen was pretty upset (flight or fight response) and it was clear that her reaction had come as a surprise to her. It was clearly a problem to her and I said I would help her consider possible ways to avoid her coming into contact with Stuart although this would inevitably have to be limited to the department and allocation of work which necessarily may involve contact with him.
(Following this meeting I spoke to SP in general terms and reinforced and agreed that if he wished to come over to the department he should call me first and arrange an appropriate time)."
- There was a further meeting between the claimant and Mr Bartlett on the following day, 20 April 2001. Again Mr Bartlett made a file note, containing the following:
"Further brief chat on her inadvertent contact with Stuart Preston. Emphasised that I would not raise the question again unless I thought her work or demeanour was affected (in order not to create a bigger issue and to look forward) but urged her to come and talk with me if it continued to be problematic."
- They had a further discussion on 16 May when the claimant "… explained that her issues with SP have not gone away and continue to hinder her ability to work effectively." She also said that she wanted to pursue the formal complaints procedure subject to her having the support of Mr Bartlett, Mr Giles, and Mr Elliston. Mr Bartlett then discussed the issue with both Mr Clark and Mr Elliston. His contemporary note was that both had concerns as to the possible effect of a formal complaint on the department and its relationship with Legal Entity S and A, but recognised that it was her decision as to whether or not to make a formal complaint, and that they would provide support in terms of co-operating positively with any investigation. Mr Elliston suggested that she produce a list of the 'pros and cons' of taking such action.
- On 17 May 2001 Mr Bartlett saw the claimant again. The file note contains the following passage:
"… … I have discussed the issues with Giles and Richard and whilst both had reservations that her proposed action would achieve the effect she was desiring and were concerned as to the effect it may have on the department, they both recognised the problems caused by SP in the department and proffered their support should she decide to take it forward. I said to Helen that she would have my full support (to the extent of acting as a sounding board, advising her, liaising with HR etc). I mentioned to her (which she was not aware of) that SP had left the department under a cloud and this had been communicated to DGP when taking him on. He had not had an enhancement in salary or position when transferred to LESA. This seemed to be a relief to Helen. We agreed that she would go away and compile the list of pros and cons which we would discuss on Friday or Monday. I said to her that one way or another we would resolve this issue together."
- The claimant duly produced an analysis of the 'pros and cons' of invoking the formal complaints procedure, and then had a meeting with Lorraine Brown of HR. Ms Brown made a contemporary note of their discussion. The claimant takes issue with it in a number of respects. But in the course of her evidence Ms Brown explained the way in which it came into existence, namely that in advance of the meeting she prepared a summary of the situation to date together with the questions that she proposed to ask. At that point Ms Brown was relatively inexperienced, and having seen her and heard her explanation of her approach, I am satisfied that she is likely to have conducted the discussion with the claimant in the methodical manner indicated by her memorandum, and that its contents are reliable. The conclusion recorded by Ms Brown was in the following terms:
"Agreed she did not want to make a formal complaint against Stuart and realised that it wasn't practical for us to be able to keep her away from Stuart. HG said she would need to work herself at overcoming this with the help of her counsellor.
On 24 May the claimant sent an e-mail to Mr Bartlett and Ms Brown copied to Mr Elliston confirming that she would not be pursuing a formal complaint against Mr Preston regarding his conduct and behaviour to her. She continued "due to the evident support of management, I feel confident enough to work through my remaining issues informally regarding Stuart Preston – this will take the form of continued private therapy …".
- The claimant also asked what Mr Preston had been told regarding her return to work, and was told that he, in common with other members of staff, had not been told any details about her absence from work
- In August and September 2001 there were difficulties between the claimant and Christine Paige. Ms Paige was the Chief Administering Officer for DB London, and was therefore second in command to the COO. She also chaired the BCM committee. The claimant was its secretary. The friction between them, in particular as to the minutes of meetings of the committee, resulted in Ms Paige requesting that she be removed as secretary. Although there was a supportive response from other members of the committee, the claimant was removed; but Ms Paige was also relieved of her position as Chairman.
- PROJECT BAXTER
In September 2001 the claimant was assigned to assist Mr Bartlett with a management buy-out led by the Asset Management Division, known as Project Baxter. A progress meeting was set up which was attended amongst others by Mr Preston. The claimant had not known that he would be there and found the occasion very stressful. A few days after the meeting Mr Bartlett went on holiday, and circulated an e-mail to everyone involved with the project informing them that he was going to be away, and that in his absence the claimant would be the point of contact for the Secretariat. The day after Mr Bartlett went on holiday, Mr Clark told the claimant that he was going to attend the next Project Baxter meeting with her. She found that surprising, as Mr Bartlett had not mentioned it to her, but was glad of Mr Clark's support. She prepared a report for the meeting, which was apparently not well received. She was anxious to be well prepared for the next meeting but had noted that since Mr Bartlett had gone on holiday she had not received any e-mails or telephone calls relating to Project Baxter. That struck her as unusual. She then asked Mr Bartlett's secretary for the date of the next meeting. She did not know, but had access to Mr Bartlett's e-mail account from her computer. Accordingly they looked together to see if anyone involved in Project Baxter had sent confirmation of the time of the next meeting. The claimant opened the most recent e-mail that had 'Project Baxter' as the subject title. It was a response from Mr Bartlett to Mr Penfold, dated 20 September 2001, and as such was in the 'sent' folder. The e-mail was in the following terms:
"Re: Our discussion yesterday, I fully understand your views regarding Helen and I have plans in the medium term to resolve the position within the department. For the purposes of the meeting on Monday, I would like Helen still to attend – I have fully briefed her along the lines I discussed with you yesterday … and I hope she makes a contribution along these lines. Whilst I am away, Giles has agreed to closely supervise Helen's work until I return."
- The e-mail had a devastating effect on the claimant. She interpreted it to mean that Mr Bartlett was going to remove her not only from Project Baxter but also from the company. Her fears were reinforced by the fact that she had not been receiving any e-mails or telephone calls with regard to Project Baxter during his absence. Thereafter her condition deteriorated; and it is common ground that it was the sight of the e-mail that precipitated the second breakdown that resulted in her ceasing work on 18 October.
- CONCLUSIONS
In my judgment the claimant has not demonstrated that the defendant failed adequately to manage her return to work. I am satisfied that Mr Bartlett and the HR department took the steps that were reasonably necessary to avoid her coming into contact with Mr Preston. It was inevitable that members of the Secretariat department would on occasions speak to him by telephone. Secondly the incident on the 19 April 2001 was highly regrettable, but occurred despite Mr Bartlett having arranged for Mr Preston to come to the department when he knew that she would be absent. The reality is that her reaction to seeing Mr Preston, and to a lesser degree to hearing his name, was a reflection of his treatment of her during the second period. It was not the consequence of any further breach of duty on the part of the defendant.
- Similarly and whilst the e-mail from Mr Bartlett to Mr Penfold dated 20 September 2001 unquestionably triggered her second breakdown, it did not in my judgment amount to a breach of duty on the part of the defendant.
CAUSATION
- THE FIRST BREAKDOWN
The first breakdown occurred on 8 November 2000 when the claimant was admitted to the Florence Nightingale Hospital. The Hospital notes for the following day (see paragraph 40 above) record the claimant's attribution of her condition to "much harassment and psychological bullying there (at work) last 2 – 3 years". The views of the experts as to causation are summarised at paragraphs 56 – 59 above. But as they observed in their joint report they were not in a position to give a final view as to causation given the stark conflict on the pleadings and in the witness statements as to the allegations made by the claimant. But in the light of the answers given by Professor Fahy in cross-examination (see paragraph 59 above) it was common ground that if the bullying continued from early in the claimants employment until her first breakdown, then notwithstanding that the nature and perpetrators of such bullying changed, the bullying during the first period was an operative cause of her breakdown. I have found that in the first period the claimant was bullied and harassed by the four women, and in the second by Mr Preston. It follows that the bullying and harassment during the first period was a material cause of the first breakdown. So too in my judgment was the bullying and harassment at the hands of Mr Preston. I have no doubt that the Scott Dobbie incident also played its part. But that does not detract from the material contribution made by the bullying and harassment by the four women and by Mr Preston.
- As to the third period I have found that the defendant was not in breach of duty to the claimant. The second breakdown was precipitated by the sight of the e-mail relating to Project Baxter. But the experts are agreed that as a consequence of the first breakdown she was at a significantly increased risk of a further episode of severe depression (see paragraph 52 above). Professor Hirsch regarded her second breakdown as in effect an extension of the first. Whilst Professor Fahy was not prepared to put it in those terms, he accepted that although she did not meet the diagnostic criteria for major depressive disorder between her return to work in March 2001 and the second breakdown in October of that year, she "… she retained her prior vulnerability and added vulnerability arising from that most recent episode." In those circumstances I am satisfied that the bullying and harassment to which the first breakdown is to be attributed, was a material cause of the second breakdown. It had left her in the psychiatrically vulnerable condition in which the shock of her interpretation of the e-mail caused the further breakdown.
DAMAGES
- By section 3 of the Protection from Harassment Act 1997 damages may be awarded for anxiety caused by the harassment and for any financial loss resulting from it. But I do not propose to make a separate award under the Act, as the anxiety caused by the harassment is a factor that I shall take into account in the assessment of general damages in the common law claim, as that it is clear that the breakdowns were preceded by periods of increasing anxiety caused by the bullying and harassment to which she was subjected. The financial loss resulting from the harassment is subsumed in the claim for consequential loss and damage.
- GENERAL DAMAGES
In March 2000 the claimant was referred to a general practitioner by a member of the defendant's HR department who in turn referred her to a consultant psychiatrist, Dr Fry (see paragraph 35 above). Dr Fry considered that she was then in the early stages of a depressive illness. She was also referred to a psychologist and underwent ten sessions of cognitive behavioural therapy.
- When admitted to the Florence Nightingale Hospital on 8 November 2000, the claimant was suffering from a major depressive disorder. She was initially on suicide watch. She was treated with anti-depressant medication, then venlafaxine and underwent group therapy sessions. But as Professor Hirsch observes in his report of 12 June 2003, the fact that she was discharged within six weeks followed by three weeks in a half-way house "… suggests that her condition was not severe and was amenable to treatment." Save for one follow up visit, she stopped seeing the treating psychiatrist when discharged from hospital although she continued to receive cognitive behaviour therapy. The depressive episode lasted until March 2001 when she returned to work; and the experts agree that until the Autumn of 2001 her psychiatric disorder was in remission. Although not clinically depressed between her return to work in March 2001 and the onset of the second episode in October 2001, the experts agree that her sensitivity to stress and events undermining her self esteem was increased.
- The second episode of major depressive disorder was precipitated by her seeing the e-mail from her manager, Mr Bartlett, (see paragraph 42 above) in October 2001. It lasted until May 2002. By October 2002 Professor Hirsch considered that she was " … pretty much recovered from her depressive condition." In his report dated 12 June 2003 he reported that she was no longer feeling depressed, was sleeping well and that her appetite was good. But there was a further period of what the experts agree to have been clinically significant depression from early to mid-2004 for which she was treated with dothiepin. The claimant attributes that deterioration in her condition to the stress of this litigation. In his report of 17 November 2005, Professor Hirsch recorded the claimant as saying that when she was not dealing with the case she was "… back to normal, contented and happy."
- As to the prognosis the position is succinctly summarised in the following paragraph from Professor Hirsch's report of 8 December 2005:
"70. I agree that my previous prognosis was over optimistic. Events have proved that Miss Green has remained vulnerable and damaged from the whole affair. The continuing court proceedings have undoubtedly been a contributing factor. However I think Miss Green is now beginning to get her life together. She feels much more optimistic and has found a way of life in which she feels comfortable and happy. Her confidence is growing and I expect that she will go on to get ordinary employment in a less stressful, though less remunerative, capacity. I agree with Dr Fahy that she does remain vulnerable in the future if similar events occur."
The experts agreed in their joint report that it is well established that each episode of severe depression is associated with a significantly increased risk of a further episode. Thus the claimant is and will remain more vulnerable to further episodes of depression than would have been the case had she not suffered the two episodes of major depressive disorder attributable to her treatment at the hands of the defendant's employees.
- Accordingly the claimant stands to be compensated for two major episodes of depressive disorder followed by a period of four years in which she has not been well enough to return to work and in which her capacity to enjoy life to the full has been seriously disrupted in particular by the relapse in her condition in 2004. She is also entitled to be compensated for the degree to which her vulnerability to depressive disorder has been increased.
- Her increased vulnerability has a further and important consequence. The experts are agreed that " … for the foreseeable future she is not well suited to employment in a very demanding, pressured and competitive workplace." I am satisfied that had she not suffered the two major episodes of depressive disorder, she would have continued to work as a company secretary in the City of London, either for the defendant or for another financial institution at a comparable level of remuneration. She has lost a career that she found demanding but highly rewarding, and which she had fully intended to make her lifetime career. Thus apart from the financial rewards of working in the Secretariat department of an organisation such as the defendant bank, the claimant has lost a fulfilling career which she had worked hard and overcome major obstacles to achieve.
- In assessing general damages it is also necessary to take account of the claimant's pre-existing psychiatric vulnerability. The experts' joint report contains the succinct summary of the relevant psychiatric history that I have set out at paragraph 47 above.
- I take account of the experts' opinion that she would have been likely to experience periods of depression in times of stress. But I also take account of the fact that, as Professor Hirsch observed in his report dated 12 July 2003, "Her achievements reflect the fact that she is a person with great initiative, drive, self-determination and ability." She has shown remarkable fortitude in overcoming so deeply troubled a childhood and adolescence. That in my judgment makes it highly unlikely that she would have succumbed to episodes of major depressive disorder save in response to wholly abnormal stress, such as that to which she was exposed in the defendant's employ.
- I have come to the conclusion that the case is at the bottom end of the category of severe psychiatric injury. In my judgment the appropriate award for general damages is £35,000 in the Guidelines for the assessment of General Damages in Personal Injury Cases published by the Judicial Studies Board.
- SMITH AND MANCHESTER
The claimant has now been accepted to study for a PhD in Organisational Behaviour at Birkbeck College starting in September 2006. She plans in due course to pursue a career as a lecturer. I have little doubt that given the ability and determination that she has demonstrated in the past, this is an ambition that she will achieve. But it is equally clear that she will inevitably be at some disadvantage in the labour market as a consequence of having been unable to work for many years as a result of her psychiatric illness, and of the fact that she is at a markedly increased risk of further psychiatric disorder. She has sensibly chosen now to pursue a career that should not impose the stresses to be encountered in a competitive commercial working environment, a factor which of course reduces the risk of further episodes of further depressive disorder; but it is nevertheless a factor which has to be taken into account in assessing damages under this head.
- I have come to the conclusion that the appropriate award under the Smith and Manchester head is the sum of £25,000 representing, in round terms, one year's net loss of earnings as a lecturer.
- PAST LOSS AND EXPENSES
There is a preliminary point to be resolved, namely whether the claimant would have survived the redundancy exercise undertaken by the defendant in early 2003. The point was raised in the evidence given by Mr Bartlett. In the light of the letters written by the defendant's legal department in March and August 2003, which state that the claimant's position has been "kept open with a temporary employee continuing to cover the position" and that the bank was trying to understand her condition with "a view to organising a return to work" (see paragraph 44 above), I do not accept that the claimant would in any event have been made redundant in 2003. Furthermore and even if that were to have been the case, I am satisfied that she would have found comparable employment given the consistently satisfactory content of her appraisals by the defendant.
- The second issue, which also arises in relation to future loss of earnings, is as to the appropriate basis for the calculation of her loss. It is submitted on behalf of the claimant that her loss of earnings should be assessed by reference to the earnings of Mr Rutherford, who was employed in the same capacity as the claimant and who is still working for the defendant. The counter argument advanced on behalf of the defendant is that annual salary increases in the secretariat department were limited to the relatively modest percentages set out in the counter-schedule, and that bonuses were paid on a discretionary basis based upon the contribution made by the individual. It was argued that there were reservations, notably expressed by Mr Bartlett, as to the claimant's performance. As to that there are two points to be made. First the claimant's appraisals were of a uniformly high standard. Secondly Mr Bartlett only encountered the claimant upon her return to work following the first breakdown, when as the medical experts are agreed, "her sensitivity to stresses or events undermining her self-esteem was increased". In my judgment the evidence does not support the argument that she would not have matched Mr Rutherford's level of earnings had she not been exposed to bullying and harassment resulting in serious psychiatric illness. It follows that I am satisfied that it is appropriate to assess her loss of earning on the basis that her salary and bonuses would have been in line with those received by Mr Rutherford.
- As to the detailed calculation of past losses, in their closing submissions counsel for the parties expressed the hope and expectation that it would be possible to put agreed figures before the court. That is a matter upon which I invite their further submissions.
- FUTURE LOSS
As with past loss of earnings, Mr Rutherford is the appropriate comparator. Secondly I have already made reference to the claimant's decision to pursue an academic career. She plans to undertake an MPhil, followed by a PhD with the aim of becoming a lecturer in organisational behaviour. I accept that that is likely to take of the order of five years during which she will have little if any earning capacity. Furthermore I am satisfied that her decision to embark upon such a career change, once this litigation is at an end, is entirely reasonable. It is submitted on behalf of the claimant that following completion of her studies, it would be likely to be a further year before she finds full-time employment as a lecturer. I regard that as unduly pessimistic given the resourcefulness and determination that the claimant has shown in the past. I am satisfied that it is likely that she would secure such employment upon completion of her PhD.
- The next issue is as to her likely level of earnings as a lecturer. For the purposes of calculating her future loss, her advisors have taken the mid-point on the Association of Commonwealth Universities survey of academic staff salaries for 2004-2005 for a lecturer, £32,060 per annum gross. But it is submitted on behalf of the defendant that she can be reasonably be expected to achieve at least the mid-point earnings for senior lecturers, £39,679 per annum gross. She may well achieve the position of a senior lecturer, but that is likely to take some time. I consider that the approach advanced on behalf of the claimant is realistic, embracing as it does the probability that she will begin as an assistant lecturer and will advance to senior lecturer over a substantial period of time. In my judgment it is entirely appropriate to take the mid-point for lecturers as the basis for the calculation.
- With regard to the next five years, the claimant is in my judgment entitled to recover the cost of re-training at £3,100 per annum.
- In addition to compensation for future loss of earnings, the claimant is entitled to be compensated for the loss of pension, for loss of private health cover, for loss of life cover and for gym membership. There is also a claim for future medical care and allied expenses totalling £2,340 to which the claimant is entitled.
- I therefore invite submissions from the parties as to the calculation of the claim in the light of the conclusions set out above.
